07/08/2019 7:31 PM IST | Updated 07/08/2019 7:31 PM IST

The Rocky Legal Foundation Of The BJP’s Kashmir Plan

It’s an elementary proposition of law that one constitutional provision cannot be used to defeat another constitutional provision or to render it void.

RAKESH BAKSHI via Getty Images

With one order this week, New Delhi has removed the preferential treatment accorded for decades to Jammu & Kashmir applied all the provisions of the Indian Constitution to J&K and made the state legislative assembly (instead of its Constituent Assembly) the competent authority to recommend to the President to declare Article 370 inoperative. 

This article examines the Constitution (Application to Jammu and Kashmir) Order, 2019, issued by the President under Article 370(1) of the Constitution. I confine myself to the legal issues entailed by the order, as I have long maintained that the genesis of the Kashmir issue or its resolution is not located in Article 370. 

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As a point of departure, let us recall the import of Article 370. Anyone familiar with the constitutional history of the sub-continent would know that J&K, a sovereign state as of 15 August 1947, acceded to India through the accession instrument of 26 October 1947 and became an integral part of India. Such accession by the ruler, though unconditional, was only in matters of external affairs, communications and defence and certain ancillary matters. 

The accession instrument expressly declared that nothing therein would affect the continuance of the sovereignty of the ruler in or over J&K. Unlike other princely states acceding to India, the sovereign ruler of J&K did not merge the territory of the state into the Indian Union or cede other subjects to India. 

In 1971, an 11-judge bench of the Supreme Court held in Madhav Rao that the accession instrument was an Act of State on the part of the sovereign ruler of a princely state and bound all concerned, and that relations between the princely state and India were strictly governed by the accession instrument. 

Given that India was to be a democratic republic, the Constitution makers contemplated a transfer of power from the ruler of J&K to a duly elected state constituent assembly, and for this state constituent assembly to finally determine the constitutional relationship of J&K with the Indian Union, as emphasized by the Constitution Bench decision of the Supreme Court in Premnath Kaul (1959). 

Meanwhile, the Constitution was made applicable to J&K through Article 370, which inter alia provided that the power of Parliament to make laws for J&K would be limited to matters specified in the accession instrument in “consultation” with the J&K government and other matters with the “concurrence” of the J&K government. Similarly, the President could apply other provisions of the Constitution to J&K relating to matters specified in the accession instrument in “consultation” with the J&K government, while such application in respect of other matters required the “concurrence” of the J&K government

The state Constituent Assembly, set up in 1951, regarded the constitutional relationship of J&K with India as one of an autonomous republic within the Indian Union. This relationship was later crystallized in the Delhi Agreement, 1952, which was duly ratified by Parliament and the state Constituent Assembly, and which inter alia permitted the state legislature to make laws conferring special rights and privileges upon the state subjects. The President, with the concurrence of the J&K government, issued the Constitution (Application to Jammu and Kashmir) Order, 1954, under Article 370(1) which inserted provisions like Article 35A into the Constitution to give effect to the Delhi Agreement and also applied further Articles of the Constitution to J&K. 

Ironically, J&K state did get a ‘special status’, though certainly not that of an autonomous republic within the Indian Union. Rather, it found itself at the other end of the spectrum, with mere executive directions by New Delhi deciding its fate.

Thereafter, successive regimes at New Delhi issued a series of executive presidential orders under Article 370(1) over the decades to apply almost the entire Constitution to J&K and that too, with modifications that would have been impermissible for other parts of the country. This ran counter to the very purpose of introducing Article 370 into the Constitution. Thus, ironically, J&K state did get a ‘special status’, though certainly not that of an autonomous republic within the Indian Union. Rather, it found itself at the other end of the spectrum, with mere executive directions by New Delhi deciding its fate.

Against this backdrop, let us consider the 2019 Order issued by the President, apparently with the concurrence of his own nominee, the J&K Governor, who has been equated by the 2019 Order with the J&K government. 

The order can be analysed in two parts. 

The first part relates to the supersession of the 1954 Order that had given effect to the preferential status of J&K, followed by the application of all provisions of the Constitution to J&K. This is vitiated by the same infirmities that made the erosion of Article 370 over the decades unconstitutional, including the fact that it was the state Constituent Assembly, and not New Delhi, which was to determine the constitutional relationship between J&K and India. 

The second part of the 2019 order pertains to the proviso to Article 370(3). This proviso mandated a recommendation from the state Constituent Assembly (which was to be convened for the purpose of framing the state constitution) to the President to declare Article 370 inoperative before he could do so. Since the state Constituent Assembly dispersed after framing the state constitution in 1957, without making any such recommendation, it follows that the competence of any organ of the Indian State to declare Article 370 inoperative no longer exists. 

Now, the 2019 order adds to Article 367 of the Constitution (an Interpretation clause) a provision to the effect that the state Constituent Assembly referred to in the proviso to Article 370(3) shall be read as the state legislative assembly. 

Simply put, New Delhi has sought to exercise the power under Article 370(1) to nullify or circumvent the protection given to J&K by Article 370(3). That runs counter to the elementary proposition of law that a constitutional provision cannot be used to defeat another constitutional provision or to render it void. 

Further, recourse is usually taken to an interpretation clause where there is ambiguity requiring the aid of interpretation. There is no ambiguity in Article 370, which expressly states that it is the state Constituent Assembly (convened to frame the state constitution) which would be the competent authority to make a recommendation to the President to declare Article 370 inoperative.

There is, accordingly, no warrant to use Article 370(1) to substitute the reference to the state Constituent Assembly in Article 370(3) with the state legislative assembly. Clearly, the intent was to denude the protection guaranteed by Article 370(3). To allow New Delhi to do so would amount to it indirectly amending Article 370(3)—which in turn would violate Article 370(1) (c) and (d) that mandate that the provisions of Article 370 shall apply to J&K and that it is only other provisions of the Constitution that may be modified in their application to J&K. 

To make matters worse, J&K is at present under President’s rule. As all the provisions of the Constitution have been made applicable to J&K by the 2019 Order, Parliament can exercise the functions of the state legislative assembly during President’s rule by virtue of Article 356 of the Constitution. 

In other words, the implication of the 2019 Order equating the state legislative assembly with the state Constituent Assembly is that New Delhi (Government of India) needs a ‘yes’ only from New Delhi (Parliament) to declare Article 370 inoperative! Surely that cannot be the position in law. And that too, when Article 356 is not meant to take far-reaching decisions but is an emergency provision to be resorted to sparingly until the government of the state can be carried on in accordance with the Constitution. 

The 2019 Order has already been challenged before the Supreme Court. However, given that it is already in effect and that the determination of a legal challenge is bound to take time, New Delhi has presented the country with a fait accompli.

The writer is a Supreme Court advocate and the author ofUnravelling the Kashmir Knot.