The 2019 Presidential Order has pushed the issue of constitutional impropriety in Jammu and Kashmir to a point of no return bringing under threat the Rule of Law itself. It is not just the autonomy of Kashmir that hangs in balance, but also the very idea of constitutional governance in the country, says HEMRAJ SINGH.
The Constitution (Application to Jammu and Kashmir) Order, 2019, passed on August 5, 2019 extends the Constitution of India in totality to the State of Jammu and Kashmir, which, in a first of democratic demotion of its kind in India, has since been reduced to a Union Territory by way of the Jammu and Kashmir Reorganisation Act, 2019. The constitutionality of the twin actions — one executive, the other legislative — came into question immediately. However, the constitutionality of the two moves needs to be examined from several angles, given the checkered past and the complicated legal and constitutional issues involved.
In a previous article titled ‘J&K Presidential Order & Reorganization: Constitutionally Rickety‘ [Lawyer’s Update, September 2019, Vol. XXV, Part 9] (hereinafter referred to as “the previous article”), the instant writer examined the constitutionality of the 2019 Presidential Order as well as the Reorganisation Act in terms of Article 370 itself, and found that both the Presidential Order and the subsequent reorganization were squarely in breach of Article 370, under which the said Presidential Order has been issued.
The previous article treats Article 370 as any other constitutional provision amendable in accordance with Article 368, which starts with the standard non-obstante phrase “notwithstanding anything in this Constitution…” and goes on to vest Parliament with the constituent powers to amend any part of the Constitution. However, the constituent powers under Article 368, despite being constitutionally unbridled, are not limitless. For one, Parliament cannot exercise its power under Article 368 in derogation of the Basic Structure of the Constitution, which is because the constituent powers of Parliament under Article 368 are not on a par with the constituent powers of the Constituent Assembly and are thus circumscribed by the Basic Structure forged and frozen by the latter. A similar hierarchy of constituent powers emerges from the bare reading of Article 370, particularly against its historical backdrop. Article 370 does not stand on the same footing as other provisions of the Constitution for a variety of reasons.
The previous article by the instant author makes a limited comparison between the 2019 Presidential Order and the 1954 one, and concludes that unlike the 2019 Presidential Order, “the 1954 Presidential Order with all the changes made to it from time to time through other Presidential Orders is on a different footing simply because it does not seek to extend the whole of the Constitution to Jammu and Kashmir, and by not doing so remains within the ambit of Article 370 (1).” However, that is not the only difference between the two Presidential Orders. Furthermore, the Presidential Order issued in 1954 is on a different legal footing than the numerous Presidential Orders issued thereafter extending different parts of the Indian Constitution to Jammu and Kashmir.
The previous article presupposes the legal soundness of the Presidential Orders issued after the original Presidential Order of 1954 for the limited purpose of examining the constitutionality of the 2019 Presidential Order by the compromised standards of legitimacy required to hold the post-1956 Presidential Orders constitutional. And even by the standards thus lowered, the 2019 Presidential Order was found wanting. It is time to have a closer and more rounded look at the 2019 Presidential Order as well as the gradual erosion of Article 370 by successive Presidential Orders of questionable legitimacy culminating in the utterly reckless one issued in 2019 throwing all caution to the wind.
Instrument of Accession: The Governing Document
It is the Instrument of Accession executed in October 1947 by Maharaja Hari Singh in favour of the Dominion of India and duly accepted by the then Governor-General of India, Louis Mountbatten, that establishes and governs the relationship between the State of Jammu and Kashmir and the Union of India in terms of the 1935 Act read with the 1947 Act.
With the dissolution of the British Paramountcy, the sovereignty reverted to the princely states. Therefore, the accession of Jammu and Kashmir to the Dominion of India was the accession of a sovereign to another sovereign governed by the Instrument of Accession with both the sides on equal legal footing. The Instrument categorically reserves sovereignty to the Maharaja, and even the 1948 White Paper on Kashmir leaves no doubt about the position.
Furthermore, Prime Minister Nehru, in his Statement on Kashmir in Lok Sabha on July 24, 1952 stated that while the accession was complete, it was “the fact that the subjects to which Jammu and Kashmir has acceded are limited, or less than those applying to other States, that fact produces this misunderstanding as if there was partial accession.” (Noorani, 2011, p. 145).1
By virtue of the Instrument of Accession, Jammu and Kashmir had acceded only with respect to three subjects – Defence, External Affairs and Communications. “In fact, all the states acceded only in regard to these three subjects to begin with,” Nehru said (Noorani, 2011, p. 145-146).2 Subsequently, other states acceded unreservedly to the Union of India under the Constitution of India whereas Jammu and Kashmir did not, and chose to have a separate Constitution consistent with and under the umbrella of the Indian Constitution. The sovereign arrangement between Jammu and Kashmir and the Union of India was, therefore, more like the relationship between the States and the Federation in the United States of America with the residuary legislative powers vested in the states. While in the US the States have their own Supreme Courts, Kashmir was not to have one though it was to have a High Court like other Indian states. This did not make Jammu and Kashmir any less of an integral part of India than any other Indian state just like a strong federal structure in the US does not make the States any less a part of the federation, or the US any less of a nation.
Article 370 was formulated and incorporated in the Constitution of India to give effect to the special relationship governed by the Instrument of Accession that the State of Jammu and Kashmir had established with India. Article 370 (b) restricts the competence of the Parliament to make laws with regard to Jammu and Kashmir to the matters specified in the Instrument of Accession. Article 370 is described as a set of ‘temporary provisions’, which it is only in the sense that the Constituent Assembly could make a “recommendation” to the President to make Article 370 inoperative or operative with such “exceptions and modifications” as the President may notify on the recommendation of the Constituent Assembly. Since Article 370 puts into effect the sovereign arrangement between the State of Jammu and Kashmir and the Dominion of India, it cannot be varied by an amendment to the Constitution and can only be given effect in terms of its own provisions, and could be made inoperative only in accordance with Article 370 (3).
The Constituent Assembly of Jammu and Kashmir was convened as the sovereign constituent body for Kashmir tasked with the framing of the constitution and pronouncing conclusively on the issue of accession as well as deciding the extent of the application of the Indian Constitution to the State. Article 370 contemplates and also establishes a mechanism to do exactly that.
Article 370 (b) (i) makes it plain that both the Union List and the Concurrent List apply to Jammu and Kashmir only to the extent permitted by the Instrument of Accession, and to legislate on those matters the Dominion Legislature requires a Presidential Order issued in “consultation” the state government. To legislate on “other matters in the said Lists,” Article 370 (1)(b)(ii) calls for a different Presidential Order “with the concurrence of the Government of the State.” Article 370 (1)(b) deals with legislative powers of the Dominion Legislature while Article 370 (c) and (d) are about the applicability of the Indian Constitution to the state. Article 370 (c) makes Article 370 and Article 1 applicable to the state, and Article 370 (d) provides that for other provisions to be applicable, there has to be a Presidential Order with the “concurrence” of the state government applying such other constitutional provisions with such exceptions and modifications as the order may provide.
Article 370 (2) states that where “concurrence” is required and is provided by the State Government before the Constituent Assembly is convened, the concurrence must be placed before the Constituent Assembly after it is convened for “such decision as it may take thereon”. The Constituent Assembly was, therefore, free to ratify or reject any decision with regard to legislating in respect of or extending the provisions of the Constitution of India to the State of Jammu and Kashmir outside the limits drawn by the Instrument of Accession. Thus, the State Government had been empowered to step in for the Constituent Assembly only for the duration prior to convening of the latter.
Article 370 (3) provides that on the “recommendation” — neither “consultation”, nor “concurrence” — of the Constituent Assembly, the President could declare Article 370 inapplicable or make it applicable with such “exceptions or modifications” as might be notified. Once the Constituent Assembly has made its decisions under Article 370, the constitutional relationship between the Dominion of India — now the Union of India — and the State of Jammu and Kashmir was to stand conclusively and irrevocably defined. And the Constituent Assembly did cast the relationship in stone by way of Section 3 and Section 5 made unalterable through Section 147 of the J&K Constitution. The provisions make the state an integral part of India and extend the power of the State Legislature to legislate in respect of all matters except those with regard to which the Parliament of India has the power to legislate under the Constitution of India.
After the dissolution of the Constituent Assembly, the State Legislature as well as the State Executive have to operate within the confines of the State-Union relationship established by the Constituent Assembly. The constituent power vested in the Constituent Assembly does not revert to the State Legislature, much less to the State Government, after the dissolution of the Constituent Assembly of the state.
The purpose of even making a mention of the Government of Jammu and Kashmir was explained by Prime Minister Jawaharlal Nehru in his Statement on Kashmir in Lok Sabha on July 24, 1952 wherein he explained the constitutional scheme, purpose and mechanism of Article 370. Nehru said, “Article 370, although it is by no means a final Article, nevertheless, it defined more precisely the relationship of that unit—that constituent unit, with the Union of India,” and further explained that Article 370 “allowed the President to make any additions to it, any variations to it, later on, the object being that if any change or addition was required, we need not have to go through the cumbrous process of amending our Constitution…” (Noorani, 2011, p. 139).3 Nehru further said that “…in Article 370, the old principle was repeated and emphasized that all these changes or any change, required the approval of the Constituent Assembly of the Jammu and Kashmir State. When this was put down in our Constitution, there was no Constituent Assembly of Jammu and Kashmir State, but we envisaged it. We had envisaged it for a long time. And if the Constituent Assembly was not there, then it required the consent of the Jammu and Kashmir Government. So that was the position.” (Noorani, 2011, p. 140).4
Clearly, the Government of Jammu and Kashmir has never had any constituent powers, to begin with, because it has never had legislative competence. It was a temporary solution to an urgent problem, and also the only legal option in absence of an elected State Legislature. Nehru’s 1952 Statement leaves no doubt about it. The elections were conducted the first time in Jammu and Kashmir only in 1951 and the first elected legislative body was the Constituent Assembly, which came into being after the Constitution of India with Article 370 in it had already come into force in 1950.
It is absurd to argue that the Executive in Kashmir has constituent powers when it does not even have legislative competence, especially now when the State has had a duly elected Legislature in place for decades. Therefore, to say that after the dissolution of the Constituent Assembly the functions and constituent powers of the Assembly under Article 370 reverted to the Government of Jammu and Kashmir makes no sense and contradicts the letter, spirit and purpose of Article 370.
The Constituent Assembly of Jammu and Kashmir dissolved itself on January 25, 1957 by a formal resolution in accordance with the resolution passed on November 17, 1956, which stated that “this Assembly resolves that it should stand dissolved on the 26th day of January 1957, which is the date of the commencement of the Constitution,” and on January 25, 1957, a note was added to the record of proceedings declaring: “The Clock struck 12 P.M. and the Constituent Assembly was dissolved by the President, Hon’ble G.M. Sadiq, according to the resolution passed by the Constituent Assembly on 17th November, 1956.” (Noorani, 2011, p. 289).5
By contrast, after adopting the Constitution of India on November 26, 1949, the Constituent Assembly of India resolved to “adjourn till such date before the 26th of January 1950 as the President may fix,” and when it met on January 24, 1950, Dr. Rajendra Prasad was elected the first President of India, who, acting as the President of the Constituent Assembly, declared: “The House will stand adjourned now sine die,” and the proceedings recorded: “The Constituent Assembly is adjourned, sine die.” (Noorani, 2011, p. 13).6
Therefore, the Constituent Assembly of Jammu and Kashmir dissolved itself by a deliberate and formal process without vesting its constituent powers in any legislative body. The contrast between the dissolutions of the two Constituent Assemblies referred to above has also been noted by prominent constitutional expert, A. G. Noorani, who writes: “These were deliberate and considered actions and their legal significance brooks no evasion—the sole ratificatory authority to the extension of the Centre’s powers over the State on the extension of additional provisions of the Constitution of India was gone. The State Government’s ‘concurrence’, valid only till the Assembly first met on 31 October 1951, and then also subject to the Constituent Assembly’s ratification, was no substitute for the Assembly’s ratification” (Noorani, 2011, p. 17).
Supreme Court Rulings
In Prem Nath Kaul v. The State of J&K, AIR 1959 SC 749, a 5-judge Constitutional Bench of the Supreme Court referred to Clause 8 of the Instrument of Accession and observed that “nothing in the Instrument affects the continuance of the Maharaja’s sovereignty in and over his State, or, save as provided by or under the Instrument.” The Supreme Court also noted that “the hereditary rule of the State was abolished, and a provision was made for the election of a Sadar-i-Riyasat to be at the head of the State. On November 13, 1952, the Yuvaraj was elected to the office of the Sadar-i-Riyasat and with his election the dynastic rule of Maharaja Hari Singh came to an end.”
That lapse of the British paramountcy meant that “subject to the agreements saved by the proviso, Maharaja Hari Singh continued to be an absolute monarch of the State, and in the eyes of international law he might conceivably have claimed the status of a sovereign and independent State,” concluded the apex court, adding further, “We must, therefore, reject the argument that the execution of the Instrument of Accession affected in any manner the legislative, executive and judicial powers in regard to the government of the State which then vested in the Ruler of the State.”
The Supreme Court also rejected the argument that the Maharaja’s proclamation of March 5, 1948, putting in place a popular interim government headed by Sheikh Mohammad Abdullah with a Council of Ministers made Abdullah’s Cabinet “a popular Cabinet in the true constitutional sense of the expression.” The Maharaja, therefore, continued to be the sovereign Ruler of Jammu and Kashmir until the Constituent Assembly of Jammu and Kashmir was duly convened by a proclamation under the authority of the Maharaja exercised by Yuvraj Karan Singh on May 1, 1951.
Referring to Article 370 (2), the Supreme Court said, “This clause shows that the Constitution makers attached great importance to the final decision of the Constituent Assembly, and the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provisions of Art. 370(1) is made conditional on the final approval by the said Constituent Assembly in the said matters.”
The apex court ruled that “it was not, and could not have been, within the contemplation, or competence” of the Constituent Assembly of India “to impinge even indirectly” on the powers of the Maharaja. “It would be recalled that by the Instrument of Accession these powers have been expressly recognised and preserved and neither the subsequent proclamation issued by Yuvaraj Karan Singh adopting, as far as it was applicable, the proposed Constitution of India, nor the Constitution Order subsequently issued by the President, purported to impose any limitations on the said legislative powers of the Ruler. What form of government the State should adopt was a matter which had to be, and naturally was left to be, decided by the Constituent Assembly of the State. Until the Constituent Assembly reached its decision in that behalf, the constitutional relationship between the State and India continued to be governed basically by the Instrument of Accession,” stated the Supreme Court.
However, in 1968, in Sampat Prakash v. the State of J&K, AIR 1970 SC 1118, another Constitution Bench of the same strength ruled that the President could still invoke Article 370 to issue Presidential Orders despite the dissolution of the Constituent Assembly of J&K. The Court found force in the submission of the Attorney-General that “the provisions of Art. 370 should be held to be continuing in force, because the situation that existed when this article was incorporated in the Constitution had not materially altered, and the purpose of introducing this article was to empower the President to exercise his discretion in applying the Indian Constitution while that situation remained unchanged.” The “situation” referred to was the India-Pakistan war and the entanglement in the United Nations. Those were not the reasons behind Article 370. The reason simply was that Kashmir had acceded to India with certain reservations and it was left to the Constituent Assembly to decide the issue of accession as well as the legislative and constitutional relationship between the State and the Union, which was also the position recognized by the Constitution Bench in Premnath Kaul. Justice Hidayatullah was part of both the Benches, and yet, curiously, the Court does not refer to Premnath Kaul in Sampat Prakash.
In Mohammed Maqbool Damnoo v the State of J&K, AIR 1972 SC 963, another Constitution Bench of the same strength was called upon to decide if Jammu and Kashmir Assembly could abolish the office of the Sadar-i- Riyasat in view of the fact that the unamendable Section 147 of the Constitution of Jammu and Kashmir contemplates that the Sadar-i-Riyasat shall exist and “be the head of the State.” It was argued that the Governor was the successor of Sadar-i-Riyasat in all respects. The Supreme Court ruled, “It seems to us that the essential feature of Art. 370, sub- clauses l (b) and (d) is the necessity of concurrence of the State Government or the consultation of the State Government. What the State Government is at a particular time has to be determined in the context of the Constitution of Jammu and Kashmir.”
In view of the unamendable Section 147, the Supreme Court invoked Section 158 of the J&K Constitution to further invoke Section 18 of the General Clauses Act, 1977 and construed that the assent could be obtained by the Governor because the Governor was the “successor” of Sardar-i-Riyasat and acted as the Head of the State. “It is quite clear from these provisions that the Sadar-i-Riyasat is really the name given to the head of the State,” said the apex court. Section 27 of the J&K Constitution provided for the election of the Sardar-i-Riyasat, it being an elected office, but the Supreme Court held: “It is true that the Governor is not elected as was the Sadar-iRiyasat, but the mode of appointment would not make him any the less a successor to the Sadar-i-Riyasat. Both are heads of the State.”
The Supreme Court found no difference between an elected representative and an appointed official. The “mode of appointment” is what distinguish a hereditary monarch and a democratically elected Head of State. The difference that the Supreme Court so casually ignored is the difference between democratic accountability and unfettered totalitarianism and, by extension, between responsible, representative governance and unbridled tyranny. Once again, Prem Nath Kaul was not considered and it was assumed that the constituent powers reverted to the State Government after the dissolution of the Constituent Assembly of the State.
A year later, in 1973, a 13-judge Constitution Bench would hold in Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225, that even the plenary powers of Parliament to amend any part of the Indian Constitution under Article 368 could not touch the Basic Structure of the Constitution because Parliament did not have the sovereign constituent powers vested in the Constituent Assembly. The position holds for the Constituent Assembly of J&K just as well, for it was no less sovereign a body than the Constituent Assembly of India. Therefore, if the constituent powers could not revert to a legislatively competent Parliament, they could certainly not revert to a legislatively incompetent Executive in the case of Jammu and Kashmir. Thus, it follows that all Presidential Orders since the dissolution of the J&K Constituent Assembly requiring “concurrence” under Article 370 are unconstitutional. However, Article 370 (1) (b) (i) continues to operate because the orders passed under the provision were not meant to be ratified by the Constituent Assembly.
However, even among the Presidential Orders since 1954, the 2019 Presidential Order is by far the most flagrantly unconstitutional because not only was the “concurrence” to it supplied by the Governor with no State Government in place, but also the Order, issued under Article 370 (1), seeks to extend the whole of the Indian Constitution to Jammu and Kashmir, which is the same as rendering Article 370 inoperative, which can only be done under Article 370 (3) on the “recommendation” of the long dissolved Constituent Assembly. Furthermore, it also repeals the Presidential Order 1954, which was validly made on the recommendation of the Constituent Assembly of J&K. All other Presidential Orders since 1954 sought to introduce changes by amending the 1954 Order, unlike the 2019 Order, which repeals it. Therefore, the least valid Presidential Order seeks to repeal the most valid one, so to speak.
The 2019 Presidential Order has pushed the issue of constitutional impropriety in Jammu and Kashmir to a point of no return bringing under threat the Rule of Law itself. It is not just the autonomy of Kashmir that hangs in balance, but also the very idea of constitutional governance in the country. It is now up to the Supreme Court to save the day by constituting a 7-judge Constitution Bench to right the wrongs.
Noorani, A. G. (2011). Article 370. New Delhi: Oxford Univresity Press.
1 Statement on Kashmir in the House of the People, New Delhi, 24 July 1952, Parliamentary Debates, House of the People Official Report, Part II, Volume III, No. 16, cols 4501–21.
3 Statement on Kashmir in the House of the People, New Delhi, 24 July 1952, Parliamentary Debates, House of the People Official Report, Part II, Volume III, No. 16, cols 4501–21.
5 Jammu and Kashmir Constituent Assembly Debates, Official Report, Part II (1956), p. 1272.
6 Constituent Assembly Debates, Volume 12, p. 996-997.