Legal Challenge to Changes in Art 370: What It Means for J&K

Why in News?

• A five-judge Bench of the Supreme Court will begin hearing petitions challenging the changes to Article 370 and downgrading of Jammu & Kashmir state into two Union Territories.
• The petitions, involving important legal and constitutional questions, will be taken up by a constitutional bench led by Chief Justice of India (CJI).

 

Article 370 (Part XXI - ‘Temporary, Transitional and Special Provisions’)

• It was included in the Constitution on October 17, 1949. 
• Article 370 exempted J&K from the Indian Constitution (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution. 
• It restricts Parliament’s legislative powers in respect of J&K. 
• For extending a central law on subjects included in the Instrument of Accession (IoA),mere “consultation” with the state government is needed.
• The IoA gave Parliament the power to legislate in respect of J&K only on Defence, External Affairs and Communications. 
• But for extending it to other matters, “concurrence” of the state government is mandatory. 
• Article 370 could be interpreted as temporary in the sense that the J&K Constituent Assembly had a right to modify/delete/retain it; it decided to retain it. 
• Article 370(3) permits deletion of Article 370 by a Presidential Order. 
• Such an order, however, is to be preceded by the concurrence of the J&K’s State Assembly. 

 

Events Leading to Abrogation of Article 370

• Governor’s Rule was imposed in J&K on June 19, 2018, after the BJP withdrew support to the coalition government led by Chief Minister Mehbooba Mufti.
  • Under Article 92 of the J&K Constitution, six months of Governor’s Rule was mandatory before the state could be put under President’s Rule.
• President’s rule was imposed on J&K on December 12, before the end of six months,
  • President’s Rule was subsequently approved by both Houses of the Parliament.
  • On June 12, 2019, President’s Rule was extended for another six months.

 

Constitutional Changes by the Parliament: Abrogation of Article 370

• On August 5, the Centre issued an order amending The Constitution (Application to Jammu and Kashmir) Order, 1954, and superseding it with The Constitution (Application to Jammu and Kashmir) Order, 2019.
• The new order made “all the provisions of the Constitution” applicable to J&K state.
• The government also amended Article 367 to add a new Clause (4), making the Constitution of India directly applicable to J&K.
• Then, President issued a declaration under Article 370(3) making all its clauses inoperative except the provision that all articles of the Constitution shall apply to J&K.

 

Legal Challenges

Changes Made to Article 370 to Abrogate Art 370

• Article 370 provided for only application of Article 1 and Article 370 of the Constitution of India to J&K.
• Other provisions of the Constitution did not automatically extend to J&K, but clause (1)(d) of Article 370 empowered the President of India to extend them through an executive order with the concurrence of the government of J&K.
• Article 370 (3) empowered the President to “Declare that this article shall cease to be operative” completely or partially but only if the Constituent Assembly of J&K recommended such an action.
  • Since the Constituent Assembly of J&K no longer existed, having dispersed in 1957, this power of the President had ceased, unless a new Constituent Assembly came into being.
• Article 370 explained that “for the purpose of this article”, the state government meant the Maharaja (later changed to Sadr-e-Riyasat) of J&K, acting on the advice of the council of ministers.
  • But there was no state government either in J&K, so the President had no way to acquire the concurrence of the state government.
  • This meant there was no constitutional and legal mechanism available for the Centre to abrogate or amend Article 370.
• The Centre, however, used the President’s powers under Article 370(1)(d) to amend Article 367, which provides guidelines to interpret the Constitution.
• A new clause was added to Article 367, replacing “Constituent Assembly of the State” referred to in Article 370(3) by “Legislative Assembly of the State”.
• Thus, the presidential order route under Article 370(1)(d) was used to amend Article 370 itself, whereas Article 370 could have been amended only upon the recommendation of the Constituent Assembly under Article 370(3), not through Article 370(1)(d).

 

Can Parliament Assume the Powers of State Government?

• The President, while imposing his direct rule in J&K, had assumed all functions of the J&K government, taken over all the powers of the Governor under both the Indian Constitution and the J&K Constitution, and extended the powers of the state legislature to Parliament.
• This meant that the President of India was in effect the J&K state government, and Parliament was in effect the state legislature.
• The powers of the J&K Constituent Assembly were passed on to the state legislature and, in this scheme of things, when the “state government” gave its concurrence to these monumental changes, it was, in fact, the President giving concurrence to his own decision.

 

Can the J&K Assemble recommend amendment to the Indian Constitution?

• The move to abolish the J&K Constitution has been challenged because the Legislative Assembly of J&K had no power under the J&K Constitution to recommend any amendment to any provision of the Constitution of India.
• Article 147 of the J&K Constitution barred the J&K Legislative Assembly from “seeking to make any change in provisions of the Constitution of India as applicable in relation to the State”.
• It has been argued that even the J&K Legislative Assembly was not legally competent to give consent to the President’s order.

 

Downgrading the Status to Union Territory

• The J&K (Reorganisation) Act, 2019 bifurcated J&K into two UTs — J&K was an UT with a Legislative Assembly; Ladakh was without an Assembly.
• There is no other instance in India’s constitutional history of a state being demoted to a UT, even though Parliament can under Article 3create a new state by carving out territory from any state, uniting two or more states, or portions of different states.
  • Parliament is also empowered to add area to an existing state, or change the existing boundaries of a state.
• The Centre’s decision has been challenged on the ground that it violates Article 3.
  • Also, the proviso to this article makes it incumbent on the President to refer any Bill proposing the reorganisation of a state to its legislature if the Bill “affects the area, boundaries or name of any of the states”.
• It is argued that the view of Parliament on such a Bill cannot replace the view of the state legislature.
• Under President’s Rule, only those powers of a state legislature can be exercised as are essential to run the day-to-day affairs of the state.
• Parliament cannot provide the view of a particular state legislature which in essence is the opinion of the people of that state.

 

Colourable Legislation

• The challenge is also based on the argument that the constitutional changes are “colourable legislation” and thus legally untenable.
• The doctrine of colourable legislation is the legal principle that says what cannot be done directly cannot be done indirectly.
• This doctrine has been reiterated by the Supreme Court, as well as constitutional courts in other countries.

 

Conclusion

• After the constitutional changes and reorganisation of the erstwhile State of J&K, the UTs of J&K and Ladakh have been fully integrated into the mainstream of the nation.
• As a result, all the rights enshrined in the Constitution of India and benefits of all the Central Laws are now available to the people of J&K and Ladakh.
• However, there are some legal challenges and the constitutional bench of the SC will deliberate upon the process of the removal of Art 370 and pronounce its judgement.

 

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Q1) What is Article 35A?

Article 35A was introduced through a presidential order (not a parliamentary process) in 1954 to continue the old provisions of Article 370. It allowed Jammu and Kashmir’s legislature to define who would legally be considered a permanent resident. It also gave the state the power to limit the rights of non-resident, Indian citizens which translated to non-residents being prohibited from owning property, obtaining government jobs, and getting government scholarships or assistance in the state. Article 35A also decreed that no act of the state legislature passed under it could be challenged for violating the Indian Constitution or any other law of the land.

 

Q2)  Can the central government split the State into two Union Territories?

Article 3 of the Constitution prohibits any shifting of State boundaries without consultation with the State Government concerned. Now since the State Government stands suspended, and as per the recent Amendment, the Governor acts as a proxy for the State Government, perhaps here too, the same logic can be said to be applied. Such however seems a little tough to palette since it undercuts the very essence of federal democracy, a rule by the people.

 

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Source: The Indian Express