Article 370: What did the SC say?

This post looks to simplify the judgment on Article 370 and reorganisation of J&K and highlight the misgivings expressed on the interpretation of the Constitution of India.

The Supreme Court of India, early last week, delivered the long-awaited judgment on the various actions concerning Article 370 and reorganisation of the erstwhile state of Jammu & Kashmir (J&K) in the case In Re: Article 370 of the Constitution. This post shall look to simplify the judgment and highlight the misgivings expressed on the interpretation of the Constitution of India (the Constitution) undertaken by the judges.

Three separate opinions were authored by Chandrachud, CJI for himself and for Gavai and Surya Kant, JJ, by Kaul, J and by Khanna, J. The opinions of Kaul, J. and Khanna, J. concurred with the lead opinion by Chandrachud, CJI. Since there is little variance with respect to the reasoning and conclusions in all opinions, this post shall focus on the lead opinion alone; in case of variance, the lead opinion will act as the majority judgment.

Image courtesy PTI

Brief Background

On 5 and 6 August 2019, the President and the Parliament undertook three actions which were challenged in this case. First, the President issued Constitutional Order (CO) 272, extending all provision of the Constitution to the state of J&K under his powers as per Article 370(1) of the Constitution, and also adding clause (4) to Article 367, by which ‘Constituent Assembly’ in Article 370(3) was to be read as ‘Legislative Assembly’. Second, Parliament, acting as the Legislative Assembly of J&K recommended to the President that as per Article 370(3) all clauses of Article 370 should cease to operate. Accordingly, the President issued CO 273 by which Article 370 ceased to operate. Third, Parliament as both itself and as the Legislative Assembly of J&K introduced, expressed its views on, and passed the J&K Reorganisation Act (Reorganisation Act).

Article 370: The Text

Due to paucity of space, this post shall not enter the domain of the history of Article 370, but shall limit itself to explaining the text of the Article. Clause 1(c) of the Article specifies that Articles 1 and Article 370 shall apply to J&K. Clause 1(d) of the Article specifies that the President may, by order, extend other provisions of the Constitution to J&K. The proviso to this clause specifies that if the provisions relate to the subjects under the Instrument of Accession, the extension of provisions shall require consultation with the state government. The proviso further states that for all other provisions (not related to subjects under the Instrument of Accession), the concurrence of the state government shall be required. Article 370(3) specifies that the President has the power to declare that Article 370 shall cease to operate or shall operate with modifications. The proviso to Article 370(3) specifies that such declaration by the President requires prior recommendation from the Constituent Assembly of J&K.

The Judgment

Extent of Actions under President’s Rule

Since all the actions seen above were taken while the state was under President’s Rule under Article 356, one of the key challenges by the petitioners was to the extent of actions taken by the President or Parliament during this time. They referred to Article 357(2) which saves legislative actions taken by the Parliament acting as Legislative Assembly of the state from automatic repulsion after revocation of President’s Rule. The petitioners argued that since there was express provision of saving of legislative actions, which could be reversed, the Constitution did not envisage ‘irreversible actions’ taken by the President or Parliament during the period of President’s Rule. However, the Court rejected this argument to say that Article 357(2) is an empowering provision for the state legislature to repeal the enacted statute. The Court said that it could not read a restriction into the powers of the President or Parliament acting under President’s Rule.

In any case, as observed by scholars, since the Court allows unilateral abrogation of Article 370 by the President, the portion of the judgment on Article 356 could be seen as obiter dictum (observations not binding as precedent).

However, another important point raised by Gautam Bhatia is with respect to the fundamental requirement of actions undertaken during President’s Rule being in furtherance of the proclamation, that is, in furtherance of restoration of conditions enabling constitutional governance. Since the Court has reaffirmed such reading, it would be of guiding effect in future cases.

CO 272 and CO 273

Two parts of CO 272 were challenged – first, adding clause 4 to Article 367 to read ‘Constituent Assembly’ in Article 370(3) as a reference to the Legislative Assembly of J&K. Second, extending all provisions of the Constitution to J&K as per Article 370(1)(d). CO 273 was challenged as the abrogation of Article 370 was not recommended by the Constituent Assembly of J&K.

The Court held that Article 370 provided procedure for its modification. Therefore, amending Article 367 to in effect ‘modify’ Article 370 would be defeating the procedure laid down for the same. Further, it rejected the argument of the government that Article 367 has been amended previously with reference to Article 370, by differentiating those COs as merely ‘clarificatory’ (for example, explaining that Sardar-i-Riyasat would be reference to Governor) and not ‘modifying’ Article 370.

The Court arrived at the conclusion that the Constituent Assembly of J&K could have recommended the abrogation of Article 370 to the President only while it existed. It rejected the argument of the petitioners who had claimed that once the Constituent Assembly of J&K dissolved, Article 370(3) becomes inoperable and Article 370 attains permanence. Once the Court arrived at such a conclusion, two consequent issues were decided accordingly.

First, speaking to the second part of CO 272, the Court drew parallels between Article 370(3) and the action of extending the entire Constitution to J&K under Article 370(1)(d). The Court held these two would be similar in effect, the only difference speaking to the reversibility – the action under Article 370(1)(d) is reversible, while abrogation under Article 370(3) is not. Concurrence from the state government is required under Article 370(1)(d). However, drawing equivalence between the effect of Articles 370(1)(d) and 370(3) and the lack of requirement of recommendation under Article 370(3), the Court extended the same to Article 370(1)(d) to read down the requirement of concurrence of state Government.

Second, once the conclusion that the President can on their own abrogate Article 370 without the recommendation of Constituent Assembly under Article 370(3) is drawn, CO 273 also becomes valid, irrespective of whether the amendment of Article 367 in CO 272 was unconstitutional. Chandrachud, CJI in his opinion gave a run-down of all COs saying that the abrogation of Article 370 was the “culmination of process of integration”.

Reorganisation Act

Article 3 of the Constitution speaks to the formation of new states, alteration of areas, boundaries or names of existing states. The procedure contemplates the President referring any such proposal to the legislature(s) of the state(s) being affected by such action, the legislature(s) expressing their views on the same (although not binding) and then the Parliament considering it in the form of a bill.

The challenge to the Reorganisation Act was on two fronts – procedural – that the procedure contemplated under Article 3 was not followed and substantive – that Article 3 does not allow downgrading a state to a Union Territory.

On the procedural challenge, the Court held that since the views of the state legislature(s) are not binding, the Parliament expressing its views, acting as the Legislative Assembly of J&K on the reorganisation was valid.

With respect to the challenge on substance, the Court did not consider it on the count that the Solicitor General of India had submitted that the downgrading of J&K to a Union Territory was temporary and it would be reversed. However, it held valid the separation of Ladakh from J&K and its creation as a Union Territory.

Some Questions

Without commenting on the merits of the abrogation of Article 370, a few questions about the interpretation drawn by the Court must be raised. First, with respect to Article 356 and irrevocable actions, although obiter, the idea that the President and the Parliament can make such changes which cannot be reversed by an elected government of a state goes to the root of the federal structure of our polity. Could this lead to the revival of rampant usage of Article 356 by Union Governments, something that Dr. B. R. Ambedkar hoped would be a “dead letter”?

Second, the Court’s interpretation of abrogation of Article 370 not requiring the recommendation of the Constituent Assembly of J&K is questionable. As seen in the scheme of Article 370, extensions of the provisions of the Constitution to J&K required the involvement of the state government at some levels. At the lowest extension – subjects already covered by the Instrument of Accession – mere consultation was enough. For other provisions, concurrence was required. How, then, could the Court interpret that for the highest change to Article 370, its abrogation, the standard is the lowest – that too, when an explicit provision exists to the contrary?

Finally, with respect to the Reorganisation Act – can procedural requirements be done away with even if the ‘views’ of the state Legislature may not be binding? Any state’s views on its own existence can then be delegated to the Parliament by invoking Article 356. Further, can the Solicitor General’s submission that the downgrading of J&K to a Union Territory being temporary be accepted by the Supreme Court to abdicate its responsibility of deciding on an issue?

The Court’s decision raises as many questions, if not more, than it seeks to address in this case. The repercussions would extend to the understanding of federalism in the years to come.