Did Govt Actually Revoke Article 370? Can the Order be Challenged?

Union Home Minister Amit Shah announced in the Rajya Sabha on Monday, 5 August, that the President had issued an order modifying Article 370 of the Constitution of India, leading to reports that the government had revoked the controversial provision – which provides for Jammu & Kashmir’s special status, and the BJP had promised to abrogate in its manifesto.

Unlike his other announcement, regarding the bifurcation of Jammu & Kashmir into Union territories (Ladakh and Jammu & Kashmir), the measures regarding Article 370 does not need to be passed by Parliament, as they have been brought in by a Presidential Order, the Constitution (Application to Jammu and Kashmir) Order, 2019.

But what exactly does the Order do? Does it actually revoke Article 370? Does it affect Article 35A (which deals with the privileges of permanent residents of J&K)? And can it be challenged in court?

WHAT DOES THE ORDER DO?

The Order does not revoke Article 370 in so many words. However, it effectively abrogates the provision and what it was meant to do.

• First, it supersedes the Constitution (Application to Jammu and Kashmir) Order, 1954. This is important since it means it supersedes Article 35A which was inserted by the 1954 Order, which in turn means that the restrictions imposed by that provision, for instance which prevented non-permanent residents from purchasing property, can be overridden.
• Secondly, it applies to all the provisions of the Constitution of J&K. Previously, apart from Article 1 and Article 370, provisions of the Constitution could only apply once they had been notified by the President in consultation with the government of the state. Laws not relating to defence, external affairs and communication that applied to the rest of the country would not apply to the state – for instance the Indian Penal Code. The 2019 Order removes these restrictions.
• Thirdly, it makes changes to the safeguards built in to Article 370, which required consultation with the state government and the Constituent Assembly of the state. It is now expressly stated that the term “Government of the State” in Article 370(1)(d) should be interpreted as including the Governor, and that the term “Constituent Assembly of the State” should be interpreted as “Legislative Assembly of the State”.

DID THE GOVERNMENT HAVE THE POWER TO DO THIS?

The government has passed this Order under Article 370(1) of the Constitution, specifically Article 370(1)(d). Under this, the President can notify provisions of the Constitution to apply to J&K provided this is done in consultation with the “Government of the State”.

The 2019 Order is not a revocation, because under Article 370(3) for Article 370 to be removed, it requires a recommendation of the Constituent Assembly of J&K – which is not possible any more since the Assembly was dissolved in 1956. The Supreme Court has held that this does not mean the condition is done away with, and that Article 370 was not temporary.

It is unclear if the 2019 Order has actually been validly passed.

• First, the President only consulted with the Governor, not an elected government of the state. If this precondition of Article 370(1)(d) hasn’t been fulfilled, the Order is not valid. The fact that the Centre has had to include a new interpretation clause to this effect in the Order shows there was considerable confusion on this point.
• Secondly, because it effectively causes Article 370 to cease to operate, it could be argued that it had to be in consonance with Article 370(3), which it obviously is not. The argument would essentially be on the lines of one that is a classic of constitutional and administrative law: you cannot do something indirectly, which you cannot do directly.
• Thirdly, it could be argued that Article 370(1)(d) cannot be used to notify all the provisions of the Constitution, as this goes against the point of Article 370, which gave effect to the Instrument of Accession. J&K only agreed to join India on the condition they would have a special status, as evinced in the Delhi Agreement of 1952 and the deliberations of the J&K Constituent Assembly before it dissolved. To do away with this, even though it is indirect, could be a breach of those conditions, and may even be construed as a violation of the Basic Structure of the Constitution (though this latter point would be very debatable).

THE RESOLUTION ON ARTICLE 370: CREATING COMPLICATIONS FOR THE GOVT?

From the text of Amit Shah’s speech in Parliament, it was strange to note that he specifically mentioned that the government intended that Articles 370(2) and 370(3) would be removed, leaving only Article 370 (1) in place, which would also be modified. The text of the presidential order, however, did no such thing.

The confusion seems to have been cleared by the publication in the Rajya Sabha’s Supplementary List of Business of a proposed statutory resolution, which would have the Houses of Parliament recommend a public notification to be issued by the President of India under Article 370(3).

This recommended notification would then state that Article 370(2) and 370(3) would cease to be operative, and that only Article 370(1) would remain in force, in modified form. The modifications essentially reflect what the 2019 order has done, that all provisions of the Constitution of India are applicable without modification to Jammu and Kashmir.

But the language used in the statutory resolution could run the government into trouble. As mentioned earlier, not issuing the presidential order under Article 370(3) was a clever move, as this seemed to avoid the pitfalls of that particular provision and the complications of the Constituent Assembly of J&K. The new interpretation clause would allow the government to pursue the purging of Article 370 at a later time, once a new Legislative Assembly was elected, having already effectively rendered it inoperative by the order.

However, the new move instead shows that the government is trying to interpret the term ‘Legislative Assembly’ as it now reads after the 2019 Order to include the President on the pretext that the State is currently under President’s Rule. This is because no notification can be issued under Article 370(3) as the proposed resolution suggests without a recommendation from the Legislative Assembly.

However, it is difficult to see how a court would accept such circular logic, and it instead casts a negative light on the other interpretation required for the presidential order – that the term “Government of the State” should be construed as including a reference to the Governor as well. Whether this will play a role in the likely challenge in the courts, remains to be seen.