The Process of Abrogating Article 370
In scrapping Article 370 of
the Constitution and reorganising the State of Jammu and Kashmir, the
Government has adopted a meticulously crafted constitutional and legislative
mechanism, the beauty of which may have escaped attention of most people in the
tumultuous events of August 5/6, 2019. This article tries to describe and explain
the mechanism adopted.
Background
To understand the mechanism
of abrogation, it is necessary to have some understanding of the background in
which this exercise was undertaken. Article 370 of the Constitution and the
Constitutional Order issued in 1954 in implementation of that Article formed
this background.
Article 370
Article 370 was a
constitutional device to ensure that the Constitution of India and the laws
made by the Parliament would not apply in
their entirety to the State of Jammu and Kashmir. Clause (1) of Article 370
stated that: “(d) … provisions of this Constitution shall apply in relation to
that State subject to such exceptions and modifications as the President may by
order specify: Provided further that no such order … … shall be issued except
with the concurrence of [the] Government [of the State].”
Clause (3) of Article 370
provided for the repeal or modification of this article, but only on the
recommendation of the Constituent Assembly of that State.
The Constitution Order (CO 48) of 1954
In exercise of the powers
conferred by Clause (1) of Article 370, the President of India issued The Constitution (Application to Jammu and
Kashmir) Order, 1954, which laid down which parts of the
Constitution, and with what exceptions and modifications, would be applicable
to the State of Jammu and Kashmir. This Order never formed part of the
Constitution of India, but was included as Appendix I. Later, several orders were
passed amending the CO 48 of 1954 and specifying further exceptions and
modifications in the application of the Constitution to the State of Jammu and
Kashmir. All such exceptions and modifications were consolidated in Appendix II
of the Constitution entitled, “Re-statement, with reference to the present text
of the Constitution, of the exceptions and modifications subject to which the
Constitution applies to the State of Jammu and Kashmir”.
The
exceptions and modifications thus specified were extensive. Even the Preamble was
modified to omit the words “socialist secular” in the first paragraph and the
word “integrity” in the penultimate paragraph. The latter paragraph in its
unmodified form read, “…assuring the dignity of the individual and the unity
and integrity of the Nation”. It is difficult to imagine that there was indeed some
Government of that State which took objection to asserting the “integrity of
the nation” and even secularism of the polity, and that such an objection was
entertained and accommodated by the Government at the Centre!
The
spirit behind several exceptions and modifications made in the Constitution in
pursuance of Article 370 was similarly difficult to comprehend. Many of the fundamental
rights, which form part of the basic structure of the Constitution, were
modified in their application to the State. Part IV comprising the Directive
Principles of State Policy and Part IVA defining the Fundamental Duties were
entirely omitted.
One
of the most consequential modifications introduced through the Constitution
Order of 1954 was the insertion of Article 35A. This Article, which had been
the focus of much debate in the past, gave the State immunity to continue with
and enact discriminatory laws defining “permanent residents” and “conferring on
such permanent residents any special rights and privileges or imposing upon
other persons any restrictions …” This in effect meant that the State of Jammu
and Kashmir was under no obligation to protect the fundamental rights of the
citizens of India other than those that the State chose to define as permanent
residents.
Article
370, the Constitution Oder of 1954 issued under the authority of that Article,
and several orders issued to amend it had thus created an elaborate
constitutional framework for the State of Jammu and Kashmir which was in
several respects in conflict with the spirit of the Constitution and was in
some instances against the hallowed doctrine of the basic structure.
Mechanism
of retraction
The
mechanism that the Government adopted to unravel this complex and ungainly
constitutional structure created specifically for the State of Jammu and
Kashmir involved several steps.
Step 1: Making
all of the Constitution applicable to the State
The
first step the Government took was to get the President to issue
The
Constitution (Application to Jammu and Kashmir) Order, 2019, superseding the
Constitution Order of 1954 and making “All the provisions of the Constitution,
as amended from time to time” applicable to the State of Jammu and Kashmir,
with only a single exception/ modification, which we discuss later.
This
order (CO 272) was issued under powers conferred by clause (1) of article 370
of the Constitution, by the President with the concurrence of the Government of
State of Jammu and Kashmir. This is exactly the process through which the
earlier order of 1954 was issued. Concurrence of the State in this case meant
the concurrence of the Governor, since the State happened to be under the
President’s rule.
The
order, promulgated by the President on the morning of August 5, came “into
force at once”. The Constitution of India, in
its entirety, began to apply to the State of Jammu and Kashmir from that
moment.
This
in itself was enough to render Article 370 completely ineffectual, except that
the Article could have been used in the future by another Government to issue
an order similar to the Constitutional Order of 1954.
Step 2: Preparing
for the abrogation of Article 370
The
next step of actually abrogating Article 370 could be undertaken only under
Clause (3). That required a recommendation from the Constituent Assembly of the
State, which had ceased to exist long ago. The Constitution Order (CO 272) of
2019, therefore, modified the Constitution in its application to the State by
adding Clause (4) to Article 367 (which deals with Interpretations)
interpreting the term “Constituent Assembly” in Clause (3) of Article 370 to
mean the legislative assembly of that State. Because the State was under the
President’s rule, the powers of the legislative assembly at that point of time
vested in the Parliament.
Step 3:
Abrogation of Article 370
Having
thus acquired the constitutional authority, the Government moved a statutory
resolution asking the Parliament, acting as the legislature of the State, to recommend
to the President the issuing of a public notification under Clause (3) of
Article 370 read with Clause (1) declaring that all clauses of Article 370
would cease to operate except Clause (1) which would read as under: “All
provisions of this Constitution, as amended from time to time, without any
modifications or exceptions, shall apply to the State of Jammu and Kashmir
notwithstanding anything contrary…”.
That
resolution was adopted by the Rajya Sabha on August 5 and by the Lok Sabha on
August 6. Acting on that recommendation, the President shall issue the notification
abrogating all Clauses of Article 370 except Clause (1), which would thus incorporate
into the Constitution the formulation of the Constitutional Order 2019, issued
on the morning of August 5, that formed the foundation of the whole exercise.
With
that public notification by the President, the Constitution shall no more have
any Appendices that were part of the Constitution and yet not integrated within
the body of the Constitution. The Constitution and the country shall thus both
recover their wholeness.
Step 4: Acquiring
the authority to reorganise the State
With
the coming into force of the Constitution Order of 2019, and consequently all
provisions of the Constitution becoming applicable to the State, the Parliament
got the authority to reorganise the State, as it would any other State of India.
Under the earlier Constitution Order of 1954, the Parliament could have
undertaken this exercise only with the consent
of the legislature of that State. Now, the reorganisation bill had to be merely
sent to the legislature of that State for its view.
The
Government, therefore, drafted the Jammu and Kashmir Reorganisation Bill, 2019
dividing the State into the Union Territory of Ladakh and the Union Territory
of Jammu and Kashmir. Since the powers of the legislature of the State at that
time vested in the Parliament, the President referred the Jammu and Kashmir
Reorganisation Bill, 2019 to the Parliament for its view.
The
Government, thereafter, moved another statutory resolution asking the
Parliament “to express the view to accept” the reorgnisation bill. This
resolution was introduced in both houses on August 5 and was adopted on the
same day.
Step 5:
Passage of the Reorganisation Bill
The
next step was for the Parliament to consider and pass the Reorganisation Bill. The
Bill was passed by the Rajya Sabha on August 5 and by the Lok Sabha on August
6. This completed the process.
A beautifully
structured step-by-step process
This
elaborate and meticulously structured step-by-step exercise to abrogate Article
370 and reorganise the State of Jammu and Kashmir into two Union Territories almost
had the beauty of a structured mathematical proof. As in any complex
mathematical proof, every step in this exercise had been previously applied and
tested in some context. None of the individual steps was a constitutional
innovation, but put together these led to an innovative result.
It
was this careful and rigorous structuring of the process of repeal and
reorganisation which gave the Home Minister the confidence to forcefully
declare in the Rajya Sabha on August 5 that the legislative and constitutional mechanism
being adopted would pass the judicial scrutiny that would surely follow.
Incidentally,
all these statutory resolutions and legislative measures were passed in each
house by considerably more than 2/3rd of the members present and voting.
The
Government deserves complements not only for its great political will in
undertaking this historical exercise of reintegrating the Constitution and the
country, but also for the legislative and constitutional skill and commitment
displayed by it in executing its will.
Dr.
J. K. Bajaj
Centre
for Policy Studies
August
06, 2019
