June 5, 2002


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Arvind Lavakare

The indeterminate life of Article 370, II

The indeterminate life of Article 370, I

While the separatist psyche generated in Jammu & Kashmir by Article 370 has been pernicious, its constitutional effects have been perverse -- an aspect which no one, it appears, has detected, leave alone debated.

Start off with the fact that reportedly the longest constitution in the world -- ours -- is not exhaustive enough to show the whole constitutional framework of the Indian nation. This is not an irresponsible statement.

Buy a standard book on the Constitution of India and you will find that the constitution of J&K state is not mentioned in it although, it will be recalled, such a separate constitution was enacted on November 17, 1956, because the state was entitled to it under the terms of the Instrument of Accession. The absurd result is that the lay Indian reading his national constitution will not know just what its relation is with the state that is 'an integral part' of his country.

Next, a note of 'explanation' in Article 370 says, 'The Government of the State (of J&K) means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers...' Since the J&K Constituent Assembly abolished hereditary rulership in 1952, what, pray, is the 'maharaja' doing in the Constitution of India in 2002?

A constitutional counsel will stand up and say the 'maharaja' was replaced by 'sadar-i-riyasat' in a presidential order issued under the mandate of Article 370. True, but how can the 'sadar-i-riyasat' be acceptable to the reader in 2002 when there is no such authority but only its equivalent, viz the state governor? Another expert will then tell you that in November 1952 the word 'governor' did, in fact, replace the phrase 'sadar-i-riyasat'. Fine, but why doesn't 'governor' figure in Article 370 of our Constitution that's read in 2002? And do you know who issued that order of replacement? It was the ministry of law! Which country allows a major dignitary of state to be re-named in its constitutional document by a mere bureaucratic fiat?

There's more -- and it's not cosmetic. Under Article 370, the President has issued, by last count, 43 orders, each known as 'The Constitution (Application to Jammu & Kashmir) Amendment Order'. Some of them have brought about significant changes in certain provisions of the Indian Constitution in their application to J&K. The list is too long to be detailed here, but the following are two examples from the order that repealed the one of 1950 and came into effect from May 14, 1954:

  1. An addition to Article 3 specifying that 'no Bill providing for increasing or diminishing the area of the State of Jammu & Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State'.
  2. Addition after Article 35 of a new article providing that none of certain specified laws pertaining to J&K's 'permanent residents' (defined in section 6 of the state constitution) shall be void on the ground that 'it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision' of the Indian Constitution's Part III dealing with fundamental rights.
Do you know that both these far-reaching exceptions to the country's constitutional framework just do not figure in the officially published Constitution of India? In fact, none of the contents of the said 43 constitutional orders of the President form part of the official Constitution. Why? The answer will stun you.

In July 2000, this writer purchased The Constitution of India with selective comments by P M Bakshi, a former member of the country's Law Commission. It was the book's fourth edition, published in January 2000 by the reputed firm of Universal Law Publishing Co Pvt Ltd, New Delhi. I wanted to understand the constitutional procedure for bringing about the much talked about demand for trifurcation of J&K.

Actually, I was seeking corroboration of what Dr A S Anand, a former chief justice of India, had stated in the 1998 edition of his book on the J&K constitution. He had mentioned that, with respect to Article 3 of the Constitution of India, 'the status of J&K markedly differs from that of the other states. In the case of other states,' he wrote, 'only the views of their legislatures are ascertained by the President before recommending introduction of a Bill relating to these matters [of altering the boundaries or name of a state], but in the case of Jammu & Kashmir no such Bill shall be introduced unless the legislature of the state consents.'

Imagine my shock when Bakshi's book did not show the above exceptional provision mentioned by Justice Anand. A letter to that effect was sent to Universal Publishing. The reply dated July 15, 2000, of a director of Universal Publishing was unbelievable. It said: 'No change can be made by us in Article 3 of the Constitution, as parliamentary amendment is necessary for amending it. It has been taken from the Constitution of India published by the Government of India. Article 3 in our book is OK.'

A little reflection brought home the above reply's horrifying revelation: the exception to the article mentioned at 1 above had NOT been approved by the country's Parliament! An examination of the 43 constitutional orders issued by the President showed that none of the changes/exceptions made for J&K by orders in his name find a place in the official Constitution of India -- not even in the March 2002 economy edition of Bakshi's book. Clearly, none of them had been approved by Parliament.

Clearly, what had transpired was that each ruling government in Delhi had simply dealt with the ruling regime in Srinagar and brought about orders signed by the President of India under Article 370(1)(d) that permits him to specify 'exceptions and modifications' in the provisions of the nation's Constitution in their application to J&K. And all these exceptions and modifications have been in vogue without a green signal from Parliament. In effect, the great, supreme Parliament of India has been hijacked for 50 years and more!

The horror is not over, readers.

The first sentence of Article 368(2) says, 'An amendment of this Constitution may be initiated only by the introduction of a bill for the purpose in either House of Parliament...' But the President's Constitutional (Application to Jammu & Kashmir) Amendment Order, 1954, added the following to Article 368(2): 'Provided further that no such amendment shall have effect in relation to the State of Jammu & Kashmir unless applied by order of the President under clause (1) of Article 370.'

What those 30 words above were doing was to amend Article 368 titled 'Amendment of the Constitution'. And it was being done under the seal of the President without invoking Parliament in any manner whatsoever -- in violation of what has specifically been demanded by the above-quoted clause of this Article itself.

Was that action constitutionally correct? NO! Under Article 368(2)(e), any amendment seeking to make a change in Article 368 itself requires not only the commonly known two-thirds majority in each of the two Houses of Parliament, but 'shall also require to be ratified by the legislatures of not less than one-half of the states by resolution to that effect passed by those legislatures before the Bill making provision for such amendment is presented to the President for assent'.

Was the amendment to Article 368 made for J&K by the President's constitutional order of 1954 based on the above-stipulated ratification by the required number of state legislatures? NO! It was, instead, issued exclusively under Article 370 and was therefore a gross constitutional impropriety. In fact, all the 43 constitutional orders must be deemed unconstitutional because they were, as seen earlier, not based on parliamentary approval. It is conspicuous that this constitutional amendment of Article 368 by a presidential order is not in the list of recorded constitutional amendments of 50 years from the first one in 1951.

Seeking refuge in the power given by Article 370 to the President (acting on the advice of his Ccouncil of Ministers) to make constitutional exceptions is itself unconstitutional because Article 370 is applicable only to J&K while 'Article 368 (Power of Parliament to amend the Constitution and procedure thereof)' is a much larger and more supreme provision. If Article 370 overrides Article 368 -- as it has done in the last 50 years -- it must be altered or, better still, scrapped.

But even scrapping Article 370 does not require Parliament's consent! Clause (3) in the article says, "Notwithstanding anything in the foregoing provision of this article, the President may, by public notification, declare that this article shall cease to be operative ... Provided that the recommendations of the Constituent Assembly of the State ... shall be necessary before the President issues such a notification." Note that the President's order abrogating Article 370 doesn't need the sanction of a parliament democratically elected by the people of India but demands the push by a J&K institution that's been moribund since the first state assembly election took place in 1957! Can anything be more absurd in the constitutional working of any self-respecting nation?

Sadly, the National Commission to Review the Working of the Constitution didn't have either the capability to understand the position or the courage to recommend what it should have: abrogation of Article 370 or, in the least, its dilution so as to return to Parliament the constitutional supremacy it merits. After its go-by to a definition of secularism and the enactment of a uniform civil code, Article 370 thus became the NCRWC's third failure.

The definition of 'secular'
Where's the Uniform Civil Code?

Arvind Lavakare

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