In my last post on Article 370, apart from understanding the nitty gritties of Article 370(3) which deals with abolition of the controversial provision, I discussed exploring an alternative under Article 368. In this post, I shall continue with the discussion on the J&K-specific amendments made to Article 368 and their effect, if any, on the power of the Parliament to abolish Article 370 without seeking the consent of the J&K State Legislature or Omar Abdullah.

For the purposes of this post, here’s Article 370(1) again:

Article 370: Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything in this Constitution,

(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify

Explanation: For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948 ;

(c) the provisions of Article 1 and of this article shall apply in relation to that State;

(d) 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:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government

What is critical to note is that Art. 370(1)(d) states that only those provisions of the Indian Constitution shall apply to J&K which the President of India may specify by an order, and even those provisions shall apply subject to the exceptions and modifications that the President may specify in his Order. Further, under the first Proviso to Art. 370(1)(d), the concurrence of the J&K Government is not needed for the President’s Order to be valid since it merely refers to “consultation”. Under the second Proviso, for the President’s Order to be valid, the concurrence of the J&K Government is necessary.

Pursuant to Art. 370(1), the Constitution (Application to Jammu and Kashmir) Order, 1954 was issued which came into force on May 14, 1954 and contained J&K-specific amendments made to the Indian Constitution. As part of these amendments, Article 368 too was amended. As discussed in the last post, Article 368 deals with the power of the Parliament to amend or repeal any provision of the Constitution. Pursuant to the Constitution Order, 1954, a J&K-specific Proviso was added to Article 368(2), and Clause 5 of the original Art 368 was omitted. The amended Article 368 as it applies to J&K reads as follows (the underscored portions are the additions made to Art 368):

368. Power of Parliament to amend the Constitution and procedure therefor

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in

(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent

Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370

(3) Nothing in Article 13 shall apply to any amendment made under this article

(4) No law made by the Legislature of the State of Jammu and Kashmir seeking to make any change in or in the effect of any provision of the Constitution of Jammu and Kashmir relating to:—

(a) appointment, powers, functions, duties, emoluments, allowances, privileges or immunities of the Governor; or

(b) superintendence, direction and control of elections by the Election Commission of India, eligibility for inclusion in the electoral rolls without discrimination, adult suffrage and composition of the Legislative Council, being matters specified in sections 138, 139,140 and 50 of the Constitution of Jammu and Kashmir, shall have any effect unless such law has, after having been reserved for the consideration of the President, received his assent.

The critical question that arises is: what is the effect of the addition of the Second Proviso to Article 368(2) on the power of the Indian Parliament to abolish Article 370 by an amendment to the Indian Constitution?

The Second Proviso states that no amendment shall have an effect on J&K unless it is applied to J&K by a Presidential Order under Article 370(1).

It is important to note that if the objective of the Second Proviso was to prevent a straight-forward abolition of Article 370 by amendment of the Indian Constitution through Article 368, such a critical objective would have found direct and express mention. Instead, all that the Proviso states, is that any amendment made to the Indian Constitution shall apply to J&K only pursuant to a Presidential Order. The absence of any express requirement of consent from the J&K State Legislature is stark and prominent.

Further, it could be argued that an amendment of the Indian Constitution to abolish Article 370, at best, falls under the first Proviso to Article 370(1)(d) which deals with the matters specified in the Instrument of Accession. The said Proviso requires mere “consultation” with the Government of J&K, and not its “concurrence”. Therefore, it could be argued that the Indian Parliament could invoke its constituent powers under Article 368(1) to abolish Article 370, which could then be brought into force by the President of India through an Order, after “consulting” the J&K Government.

It is not my case that this is a water-tight solution or that this approach must be tested in haste without adequate legal preparation or “groundwork”. That said, this could be one of the options worth looking into.

The next issue that I wish to address is the argument that any abolition of Article 370 may be constitutionally challenged for violating what is known as the “basic structure” of the Indian Constitution.

The 1973 decision of the Supreme Court in Kesavananda Bharati v State of Kerala is prominently credited with the invention of the “basic structure” doctrine. In this decision, the Supreme Court identified certain essential/core features of the Indian Constitution which no amendment under Article 368 can have the effect of diluting or annulling since these features represent the immutable aspects of the Constitution.

The “basic features” although not exhaustively identified, were said to include the supremacy of the Constitution, republican and democratic form of Government and sovereignty of the country, secular and federal character of the Constitution, separation of powers between the legislature, the executive and the judiciary, the dignity of the individual, and the unity and the integrity of the nation.

The question that could be asked in the context of Article 370 is, could it be argued by those who oppose abolition of Article 370 that the provision is part of the “basic structure” of the Constitution and hence unchangeable? I am not sure the argument is tenable since the provision was meant to be “temporary” and “transitional”. Further, when Article 370 itself provides a mechanism for its cessation/abolition, could it be plausibly treated as being part of the Constitution’s immutable “basic structure”?

Also, if according to the Supreme Court in Kesavananda Bharati, unity, integrity and sovereignty of India are basic features of the Constitution, could it be argued that Article 370 was never meant to be removed? Surely, the framers of the Constitution did not intend a permanent limbo-like status for J&K.

Finally, it is being suggested by a few people that without Article 370, the legitimacy of the very accession of J&K to India could be called into question. Again, I don’t think this is a valid fear given that an act of abolition of a provision is typically accompanied by a Savings clause to preserve whatever is critical and desirable. Therefore, it is not as if the abolition of Article 370 would be undertaken in isolation without simultaneously “constitutionalizing” the status of J&K as a State of India on par with other States.

Also, it must be pointed out that the Constitution of Kashmir, 1957 itself states both in its Preamble and Article 3 that J&K is an integral part of the Union of India. In view of this, abolition of Article 370 may not jeopardize Kashmir’s accession to India. On the contrary, the continued existence of Article 370 could lend credence to “third-party” positions of Kashmir being a “disputed territory”.

Lastly, I must reiterate that no reasonable Indian realistically expects any change in the status of Article 370 overnight. However, after 67 years of Kashmir’s accession, it is certainly a legitimate expectation that the Indian State must take concrete social, political and legal steps towards completing Kashmir’s “Indianization”, with all stakeholders being duly taken into confidence including Kashmiri Hindus and Ladakhis.

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J. Sai Deepak

Engineer-turned-Advocate, High Court of Delhi. Founder of the "blawg" "The Demanding Mistress" (