Article 370 and removal of Kashmir’s special status: Devil lies in ways which Article 367(4) will now apply to Jammu and Kashmir

The Union Government passed a Presidential Order under Article 370 (1) of the Indian Constitution, to supersede the 1954 Presidential Order, which, along with several other Presidential Orders, specifies which provisions of India’s Constitution apply to Jammu and Kashmir. This Presidential Order is unique in that it lays out most of the details on the special status accorded to Jammu and Kashmir under the Indian Constitution.

As described earlier, Article 367(4) as applied to Jammu and Kashmir will in turn make Article 370(3) apply to Jammu and Kashmir (by modifying the reference to the “Constituent Assembly of the State” to mean “Legislative Assembly of the State” as described above). Thus, if the Presidential Order cannot cause Article 370 to apply in a modified form to Jammu and Kashmir directly, the Order cannot achieve the same outcome indirectly, through the funnel of Article 367(4).

But if the Indian Constitution says that Article 370 can be applied to Jammu and Kashmir, then why does Article 370(1)(d) prohibit applying a modified version of Article 370 to Kashmir?

Article 370 of the Indian Constitution provides all those elements of the Indian Constitution which will apply to Jammu and Kashmir, namely:

  • the powers of the Indian Parliament that shall extend to the territory of Jammu and Kashmir;
  • Article 1 and Article 370 of the Indian Constitution will apply to Jammu and Kashmir;
  • provisions other than Article 1 and Article 370 can be made to apply to Jammu and Kashmir in a modified form by a Presidential order provided either concurrence or consultation of the Jammu and Kashmir Government is taken, depending on what is being modified.

Clause (3) of this Article 370 clarifies that all of the above requirements can be overridden by the President in a “public notification” declaring that Article 370 of the Indian Constitution shall have no force or have partial force in the Indian Constitution, so long as the Constituent Assembly of the State of Jammu and Kashmir also consents.

The force of Article 370’s text lies along two vectors:

– One vector of Article 370 is in clause (1), which can cause provisions in the Indian Constitution other than Article 1 and 370 to apply to Jammu and Kashmir (in Article 370(1) and (2)) and;
– Another vector of Article 370 is in clause (3), which applies within the Indian Constitution, and also applies to Jammu and Kashmir in an unmodified form, to sustain the special status of Jammu and Kashmir as delineated in the rest of Article 370

By the Presidential Order, modified Article 367(4) as applied to Jammu and Kashmir causes Article 370(3) to be applied to the State of Jammu and Kashmir by replacing “the Constituent Assembly” with the Jammu and Kashmir “Legislative Assembly”. However, Article 370(3) applies to India too, in the Indian Constitution. So even if this Presidential Order modified Article 370(3) as applied to Jammu and Kashmir, the Indian Constitution’s Article 370(3) continues to require the Jammu and Kashmir Constituent Assembly’s concurrence. This Presidential order cannot modify the text of the Indian Constitution, even if it modifies the text of the Indian Constitution as it applies to Jammu and Kashmir. Therefore, for any action under Article 370(3) to be valid for India, we would still need the Constituent Assembly of Jammu and Kashmir to consent.

In short, for the purposes of the Indian Constitution, any modification of Article 370(3) as applied to Kashmir, even if it were valid, would not touch Article 370(3) as it applies in India.

But the Constituent Assembly no longer exists in Jammu and Kashmir, so is there anything India can do now?

Many hold the view that Article 370 may not be abrogated at all, legally. This idea merits some exploration.

The constitutionally legitimate way to abrogate Article 370 will be for the President to issue a public notification abrogating Article 370, under Article 370(3) of the Indian Constitution as applied to India. In fact, the Rajya Sabha has attempted to recommend that the President pass such a notification in its “Statutory Resolution”. Such a notification would only have been valid, in India, if the Constituent Assembly of Jammu and Kashmir had consented to the abrogation — which needless to say, no longer is in existence.

One conceptual way of thinking about this issue is that Article 370 embodied the terms of a treaty between the State of Jammu and Kashmir (under the Maharaja) and the Dominion of India which laid out the terms on which Jammu and Kashmir would join the dominion. The embodied form of the treaty in Article 370 of the Indian Constitution, represents the coming together of two sovereign territorial units. Therefore, it is important to remember that the Indian Dominion was not bestowing a concession on Jammu and Kashmir, as commentary sometimes propagates. In this background, the Constituent Assembly of Jammu and Kashmir would have been the representative of the sovereignty of Jammu and Kashmir, on questions of whether Article 370 would stop having force in the Indian Constitution.

Therefore, one can argue theoretically that Jammu and Kashmir is free to decide that it will be represented by any legislative body instead of the Constituent Assembly, on the question of ending Article 370’s operation — which is a question of ending the treaty between Jammu and Kashmir and the Union of India. There is no situation in which India can decide for Jammu and Kashmir that a State Assembly can stand in for the Constituent Assembly. This is because, as shown earlier, Article 370(3) continues to apply to India regardless of how the Presidential Order modifies it for Jammu and Kashmir.

In short, only if both Jammu and Kashmir and India were in consensus could Article 370 have been abrogated, and that too by proceeding under Article 370(3) and not Article 370(1) of the Indian Constitution. So long as Jammu and Kashmir wants to retain special status in regard to the Indian State, Article 370 is effectively incapable of revocation or abrogation. The Supreme Court has thus also heldthat Article 370 is permanent, effectively.

Is there any way in which President’s Order can be considered constitutionally legitimate?

Even if we can somehow ignore that the President’s Order attempts to extend Article 370(3) of the Indian Constitution to Jammu and Kashmir — which Article 370(1)(d) does not allow the President to do — there is no way to save this Order. This is because a Presidential Order under Article 370(1)(d) requires the “concurrence of the Government” of Jammu and Kashmir, if it aims to extend the Indian Constitution to Jammu and Kashmir on matters not covered by the Instrument of Accession. This is specially provided in the second proviso to Article 370(1).

We know that Jammu and Kashmir has been under President’s rule for over a year now. This implies that Jammu and Kashmir is not governed by its own elected representatives, but is being run by an officer of the President of India — presently Governor Satya Pal Mallik. Therefore, it remains unclear as to how the Indian Government can argue that it has obtained the “concurrence” of the Government of Jammu and Kashmir.

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