Article 370 and the Constitution of India: Is the Indian government’s move indefensible?

The Centre is certainly not without ammunition to defend the constitutionality of its move which has set the cat among the pigeons. On the contrary, it has effectively exposed the hypocrisy in the naysayers’ approach to constitutionality

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The President of India, the judgement only strengthens the case of the Government today. (PTI photo)

By J. Sai Deepak

Ten days before India’s 73rd Independence Day, the Constitution of the Republic of India was finally applied in its entirety to the State of Jammu and Kashmir using the very provision of the Indian Constitution, Article 370, which was portrayed by some, to be the insurmountable barrier to the complete Constitutional integration of the State with the Indian Union. While the naysayers kept citing Article 370(3) as proof of the eternal nature of the barrier, the Centre went about its job with creative, clinical and surgical precision invoking Article 370(1)(d).

By employing a two-step process to first extend the Indian Constitution in its entirety to Jammu and Kashmir, and then cement its application by amending Article 370 to reflect the new Constitutional reality, the Indian Government has showcased its ability to think out of the box and the will to execute the product of its ideation. In the process, not only has the Centre broken a 72-year old deadlock on an issue of vital importance to the nation’s identity and security, it has also demonstrated that the immutability of the provision was a motivated myth assiduously nurtured and cultivated by vested interests, when, in fact, the provision itself held the key to its redundancy.

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Notwithstanding the accusations of surreptitiousness and secrecy, which some may call tact and discretion, the Centre is certainly not without ammunition to defend the constitutionality of its move which has set the cat among the pigeons. On the contrary, the Centre’s move has effectively exposed the hypocrisy in the naysayers’ approach to Constitutionality. For instance, those who have all along vehemently defended the patently questionable use of the President’s powers under Article 370 in 1954 to insert an altogether new provision, namely Article 35A, in the Constitution without following constitutional due process under Article 368, are now found questioning the use of the very same power by the President to extend and apply the Indian Constitution to the State.

Unfortunately for the detractors, since the Presidential insertion of Article 35A was questionably endorsed by the Supreme Court in 1961 in Puranlal Lakhanpal v. The President of India, the judgement only strengthens the case of the Government today. Simply put, those who were quite happy with the Apex Court’s endorsement of such exercise of power until August 5, 2019, are suddenly found pontificating on Constitutional propriety with unbridled sanctimony, only because they did not realise that the hand that gives can also take away.

Does this mean it is possible for a future dispensation to reinstate the unamended version of Article 370 through yet another Presidential Order? One suspects it is to precisely foreclose such an eventuality that Article 370 was pared down and amended through the second Presidential Order on August 6, 2019 so that any future amendment is routed only through the procedure prescribed under Article 368. Therefore, without the Parliament’s endorsement, and by implication without the will of the people, Article 370 as it existed prior to August 6, 2019, cannot be resurrected.

What is important to note is that the Centre may not even need to rely on the Supreme Court’s 1961 ruling to support the Presidential Orders since Article 370(1)(d), prior to its amendment on August 6, 2019, had always expressly empowered the President to apply provisions of the Indian Constitution to the State.

In other words, the current Presidential Orders stand on a vastly superior constitutional footing than the 1954 Order which introduced Article 35A. It also needs to be understood that the President’s power to apply the entire Indian Constitution to the State was neither repealed nor abridged nor diluted nor rendered redundant even after the coming into force of the Constitution of Jammu and Kashmir in 1956.

In other words, while the proviso to Clause (3) of Article 370, which empowered the President to declare Article 370 as inoperative pursuant to such recommendation from the Constituent Assembly of the State, was rendered redundant along with Clause (3) when the State’s Constitution came into force in 1956, the power of the President under Article 370(1)(d) to extend the entire Indian Constitution to the State remained unaffected.

One of the reasons for this is perhaps traceable to the language and spirit of Article 363 which effectively relegates all issues which relate to covenants, treaties or instruments of accession entered into by Princely States with the Indian Union to the exclusive domain of the President, to the extent of even barring the jurisdiction of the Supreme Court or any other Court over such issues. In other words, the President’s supremacy over all such issues is cemented on a combined reading of Articles 363 and 370. When this is read along with Article 143, it becomes abundantly clear that the Supreme Court may at best perform an advisory role when such advice is sought by the President. Therefore, before even delving into the constitutionality of the Presidential Orders, the Supreme Court has to ask itself if it is even cloaked with the jurisdiction to adjudicate on such matters.

As for the propriety of invoking Article 370(1)(d) when the State is underthe President’s Rule under Article 356, it was evident from the erstwhile language of Article 370 that the provisions of the Article would apply notwithstanding anything contained in any other provision of the Constitution, which includes Article 356. Therefore, no other provision in the Constitution or the subsistence of the President’s Rule could fetter the power of the President to invoke Article 370(1)(d) to apply the Constitution to the State. Had the Parliament intended otherwise, it would have expressly barred the simultaneous application of Article 370(1)(d) and Article 356.

Having said the above, it is possible that the Supreme Court may take an entirely different view of the matter. However, to contend that the Indian Government’s move is indefensible in law, is to do injustice to the black letter of Article 370 as it existed before August 6, 2019. Just as it would be undemocratic to impute sinister motives to everyone who questions the constitutional legitimacy of the Government’s Kashmir strategy, it would be equally unfair and unfortunate if the criticism comes from a place of spite and petty politicking at the expense of national interest. Finally, those in favour of status quo ante must ask themselves if their bile against a certain dispensation and ideology outstrips their concern for national integration.

J. Sai Deepak is practising as an advocate in the Supreme Court and the Delhi High Court. An eminent speaker on subjects related to law, he is also an avid columnist in several international journals. Views expressed in this column are the author’s own.

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