Constitution as a puzzle: Abrogation of Article 370 and Kashmir conundrum

August 5, 2019, witnessed two major events that have serious constitutional implications. The first was the publication of a Presidential Order under Art. 370 (1) that in effect made it a dead letter, and the second was the introduction of a Resolution and a bBll in the Rajya Sabha. The resolution was aimed at formally abrogating Article 370 and the Bill was for the bifurcation of the State of Jammu and Kashmir and converting it into two Union Territories, one with a legislature and the other without one.

Abrogation of Article 370 and the bifurcation of the state

Article 370 granted special status to the state of Jammu and Kashmir, whereby the laws of Parliament were applicable only on certain subjects like defence, external affairs, and communication. It further provided that only Article 1 of the Indian Constitution would be applicable in the state. However, the president, through an executive order, could extend other provisions with such modifications and exceptions after consulting the state government and with its concurrence. This provision was intended to be a temporary measure and allowed the President to abrogate it on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir (Article 370 (3)).

Discussions in the Indian Constituent Assembly throw light on the justification for this provision. Article 370 (Draft Article 306A) was the last article to be discussed in the Constituent Assembly. Contrary to public imagination, there was not much discussion on this draft article in the Assembly. N. Gopalaswami Ayyangar, who moved the article, gave three reasons for the special status. First, there had been a war going on within the limits of J&K, and parts of the state were still under the control of Pakistan. Second, the entire Kashmir issue was with the United Nations, and India was entangled in that process. Third, the government of India had given a commitment to the people of the state that an opportunity through a plebiscite would be given to them to decide for themselves whether they wanted to remain within the Republic or not. It was only Maulana Hasarat Mohani, elected on a Muslim League ticket, who objected to this ‘discriminatory’ provision.

The subsequent developments show that most of the provisions of the Indian Constitution was extended to the state through the Constitution (Application to Jammu and Kashmir) Order, 1954 and later orders that amended it. Article 35A that allowed the state legislature to define ‘permanent resident’ of the state, and to confer special rights on them, was a major modification brought by that order. The Constituent Assembly of the state of Jammu and Kashmir, referred to in Article 370 (3), ceased to exist in 1957 that made the abrogation of the article impossible. The Constitution (Application to Jammu and Kashmir) Order, 2019, issued on August 5, superseded the 1954 order and made all the provisions of the Indian Constitution applicable to the state. The order was issued after obtaining the concurrence of the governor as the state did not have an elected government due to the imposition of president’s rule under Article 356. The order also substituted the word ‘constituent assembly’ in 370 (3) with ‘Legislative Assembly of the state’, thus paving the way for the abrogation of Article 370.

Another constitutional provision that is relevant to the discussion here is Article 3, which empowers the Parliament to create new states. But, the Parliament can consider a Reorganisation Bill only after the president has obtained the views of the concerned state legislature. As the Assembly of Jammu and Kashmir was dissolved by an order under Article 356, there was no constitutional body to make the recommendations either under Article 370 (3) or under Article 3. It was here that the ‘constitutional experts’, within the government, found a way out in Article 356 (1) (b). This provision allowed the president to entrust to the Parliament the powers of the state legislature while president’s rule is in operation in a state.

Finding this short cut in the Constitution, a Resolution was presented in the Rajya Sabha that recommended the abrogation of Article 370 and the bifurcation of the state into two Union Territories. The Jammu and Kashmir Reorganisation Bill, 2019 presented on the same day made provisions for the bifurcation. The Resolution and the Bill were passed by the Rajya Sabha on the same day and by the Lok Sabha on 6 August 2019. Acting on the recommendation, the president issued the order abrogating Article 370 with effect from 6 August 2019.

Federalism

The constitutionality of the Reorganisation Bill and the Presidential Orders are doubtful on many grounds. First, it militates against the idea of federalism, which is a basic feature of the Indian Constitution. Indian federalism is often described as asymmetric federalism, meaning that all states are not equal within the constitutional framework. Thus, Indian Constitution confers special powers to certain states like Nagaland (371A), Sikkim (371F), and Mizoram (371G). The differential treatment extends even within a state. Thus, Schedules V and VI of the Constitution prescribes different governance mechanisms for the tribal areas. Special provisions for states of Maharashtra, Gujarat (371), Assam (371B), Manipur (371C), Andhra Pradesh and Telangana (371D), and Karnataka (371J) are further examples. These provisions have been incorporated to protect the distinct identity of certain areas or to meet the developmental needs of areas that may be neglected.

The Supreme Court upheld the constitutionality of such provisions in R.C. Poudyal v. Union of India (1993). This case was concerning Article 371F, a special provision for the state of Sikkim. The court did not find any constitutional objection in apportioning the seats in the state legislative assembly among the three major ethnic communities in the state. The Sangha constituency, where only a Buddhist monk could stand for elections, and could be included in the electoral roll, was also held to be constitutional. The court went even to the extent of saying, “Accommodations and adjustments, having regard to the political maturity, awareness and degrees of political development in different parts of India, might supply the justification for even non-elected Assemblies wholly or in part, in certain parts of the country.…. Historical considerations have justified a differential treatment.” The bifurcation of a state without satisfying the requirements of Article 3, and abrogation of Article 370 without consultations clearly goes against the principles of Indian federalism. Bifurcating a state that enjoyed special status in the Constitution and reducing it into a Union Territory, a first in Indian Constitutional history, might win elections, but is a serious blow to the constitutional fabric of the country.

Procedural illegality

Many justify the procedural flaws in the entire episode by arguing that such a step was long overdue. In law, especially in Constitutional law, procedure is as important as the outcome. It may be recalled that the 1971 election of Indira Gandhi was declared null and void by the Allahabad High Court on the ground of a procedural illegality. She was barred form contesting elections for six years as the resignation of her election agent Yashpal Kapoor from Government service was not accepted when the nomination paper was filed. Many people believe that it was the decision of the Allahabad High Court that led to the declaration of Emergency in 1975.

Even Constitutional Amendments have been struck down as they followed easy procedures. Kihotto Holohan v. Zachillu (1992) was a case where Para 7 of the Tenth Schedule of the Constitution (anti-defection law) was declared invalid. Tenth schedule was brought in by the 52^nd Amendment (1985) by a two-third majority in the Parliament. Paragraph seven barred the jurisdiction of courts on any matter connected with disqualification of members. The court held that ratification by half of the state legislatures, in addition to special majority in Parliament, was necessary as the provision indirectly affected the jurisdiction of High Courts. In Rajendra N Shah v. Union of India (2013), a Division Bench of the Gujarat High Court struck down Part IX B of the Constitution (cooperative societies) brought in by the 97^th Amendment (2011) on similar grounds. Court found that, in the guise of a constitutional amendment, the Parliament had legislated on a subject on which state legislatures had the power to legislate.

Legislature without constitutional base and the unconstitutional abolition of legislative council

Procedural irregularities apart, the Jammu and Kashmir (Reorganisation) Bill, 2019, raises many other constitutional issues. It is a travesty of constitutional provisions when Parliament, on the one hand, recommends the reorganisation of the state acting on behalf of the legislative assembly and on the other considers the Bill under Article 3 for the reorganisation. The picture is complete when both the recommendation and the Bill is considered, discussed, and passed on the same day at the same time. Again, it is for the first time that a legislative assembly is constituted without the backing of a constitutional provision. The two other Union Territories having an elected assembly and a council of ministers derive their power from specific constitutional provisions. National Capital Territory of Delhi has detailed provisions relating to its administration including the legislature and the council of minsters (Arts. 239AA and 239AB). Articles 239A, 239B and provisos to Article 240 deal with Puducherry. But in the case of Jammu and Kashmir, a legislative assembly is created only on the backing of a legislation. It is to be noted that section 13 of the bill does not amend Article 239 A, but merely extends that provision to the Union Territory of Jammu and Kashmir. It can have far reaching constitutional implications as one of the organs of the state is at the complete mercy of the centre and can be abolished at any time even by an ordinance.

The state of Jammu and Kashmir was one of the few states that had a bicameral legislature. Article 169 prescribes detailed procedure for the abolition of legislative council in a state. It is through a Parliamentary law that the Council can be abolished. However, for the Parliament to consider this issue, a resolution passed by the State Legislative Assembly by two thirds majority is necessary. Section 57 of the bill dissolves the Legislative Council without recourse to the procedure prescribed under the said article.

Now, all eyes are on the Supreme Court. But, as one commentator has observed, going by the recent actions, the Supreme Court would be more executive minded than the executive, and thus there is nothing much to expect. What we are witnessing today is the emergence of a new constitutional jurisprudence and Kashmir is not certainly the beginning of it. It began with classification of many bills as money bills to hoodwink the Rajya Sabha. Constitution is considered as the supreme law of the land, from which all the powers flow and by which all state actions are to be guided. It appears that legal minds in the government is approaching Constitution as a ‘find my way puzzle’ to find loop holes to further the political agenda. For the students of constitutional law, it is time to unlearn and relearn the subject.

Shiju Mazhuvanchery is professor and Head of Department at Christ Academy Institute of Law, Bengaluru