Union Home Minister Amit Shah speaking in Rajya Sabha
After the historic decision of amendment in Article 370 and removal of Article 35A, many naysayers are still hoping to challenge the parliamentary decision through judicial routes. Will it stand the scrutiny of courts?
While the controversy over the abrogation of Article 370 and 35A continues to rage, Article 368 clearly defines the power Parliament to make amendments to any part of the Constitution.
Article 370 inserted into the Indian Constitution as a political compromise reached between the Dominion of India and the Princely state of Jammu & Kashmir (J&K), or so the popular narrative goes.
However, the truth is that the Indian Constitution came into effect only in 1950 and the Instrument of Accession (IoA) between the two entities had already been signed in 1947. The legal nature of such IoA needs some analysis to understand the legislative intent behind the insertion of Article 370 into the Indian Constitution.
The IoA is much like a contract between two parties; however, things are a little different here. Out of the two entities signing the contract, one (J&K) has agreed to transfer its complete ownership to the other, literally merging itself into the Indian Union. Ownership in Jurisprudence is an absolute concept, which means you can’t own something with conditions attached. For instance, in property law jurisprudence, it’s not possible for one to sell a piece of land there in future, the current buyer can’t sell it to so and so. Such conditions are illegal, and a civil court will readily hold these - void ab initio. Similarly, when J&K acceded to India, its complete ownership now vested with the Indian Union, what to do with it was a completely autonomous decision of the Indian State and the Princely State of J&K can’t legally claim anything from it, even more so because through the operation of the IoA, the Princely State of J&K suffered a legal death. Hence, there isn’t even a party left to claim anything.
With the promulgation of Indian Constitution, several Indian States were created out of it, one was the State of Jammu and Kashmir, which is an entirely different legal entity from the Princely State of Jammu and Kashmir.
More so, the other party to the IoA, the Dominion of India, also suffered a legal death, through the promulgation of the Constitution of India and a new sovereign entity, Union of India was born.
The situation till recently was that the Indian state of J&K was claiming Article 370 as a matter of right from the Indian Union. This is a legal anomaly because the parties to the IoA stand dead, one of the parties has assumed sovereignty, the other has agreed to be a subordinate entity—which was the purpose of the IoA in the first place.
Hence, the argument that Article 370 was a manifestation of the promise of the Indian Union to the state of J&K stands entirely on a false footing and has no legal or constitutional basis.
There has been a lot of legal scrutiny about how the Union Government abrogated or scrapped Article 370. There are several types of Constitutional Amendments the Parliament can do to the Constitution, with their respective procedure. The most obvious method is Article 368, which empowers the Parliament to amend the Constitution howsoever it likes to, however, the Supreme Court has curtailed this, and the Parliament now can’t amend the basic structure of the Constitution.
Article 370 mentions that this is a temporary provision. It essentially means that the constituent assembly envisioned end of the provision in due time. Therefore, the argument that it had attained a permanent nature is an absolute falsehood. Moreover, in Clause 3, it provides a method of its removal as it’s temporary. It mentions that the President can remove the provision through a mere order, which means a simple executive action and that there is not even a requirement of any legislative action and hence the involvement of the Parliament is not required.
To make matters even more clear on the law, the Union Government brought a
state-specific amendment to Article 367, under Article 370(1), which clarified that
the state legislature could function like the constituent assembly
However, this order can be made on the recommendation of the Constituent Assembly of the State. As a well-accepted but an uninformed argument goes, since there is now no constituent assembly of the state, the Article couldn’t have been removed at all. This argument is wrong on several fronts and levels.
Firstly, everything can be removed from the Constitution except the basic structure of the Constitution; the same has been held by the Supreme Court of India in the celebrated case of Kesvananda Bharti v State of Kerala. Article 370 is not part of the basic structure, so the argument that it had become permanent is entirely wrong on law.
Secondly, there is no constituent assembly of the state left, but the heading of the provision still says it is temporary.
This can also be interpreted to mean that a temporary provision whose method of removal is not possible to execute, has lived its life and died its natural death. Therefore, the argument of no constituent assembly cuts both ways.
Thirdly, any legislative body having the power to amend the Constitution, is said to exercise its constituent powers, like the Indian Parliament under Article 368. The Legislative Assembly can, therefore, be clearly interpreted to mean a constituent assembly of J&K for the purposes of Article 370. To make matters even more clear on the law, the Union Government brought a state-specific amendment to Article 367, under Article 370(1), which clarified that the state legislature could function like the constituent assembly.
Hence, there remained no legal bar for such an action to be carried out by the government. The critics have said that this is exercise is not proper and there are some petitions pending in the Supreme Court, challenging the action of the government.
Now comes the fourth and most important legal point on the issue. The accession, secession, grant of statehood or otherwise etc. are essential policy decisions to be taken by the Executive and there is only a need of prima facie legality, which is there. Policy decisions can’t be subject to strict legal and constitutional scrutiny because they are essentially determined by the executive and are dictated by the politics of the day. The Supreme Court had held the same while dismissing the constitutional challenges to the AADHAR scheme of the government, as implementing AADHAR or not was a policy question and can’t be settled inside a courtroom.
To understand the crux of the argument, one can imagine constitutional challenges being filed in the Supreme Court against the order of the Government to carry out surgical strikes at Balakot or against the RBI for lowering the monetary policy rates etc. Will such challenges ever succeed? Definitely not, however, there is a possibility of the petitioner being slapped with a fine for wasting the time of the court. Similarly, to give autonomy to a particular state or not is a policy decision of the executive and can’t be decided in the Courts.
(The writer is Assistant Professor at Maharashtra National Law University)