Article 370, the State of Jammu and Kashmir and Plain Speak

No sooner had the Sri. Narendra Modi led NDA government assumed office at the Centre, the newly-sworn Minister of State, Sri. Jitendra Singh stirred a hornet’s nest, when he stated that, “...Article 370 has done more harm than good to the people of Jammu and Kashmir..."

The minister’s first salvo was consistent though with the BJP's stated position of “abrogation of Article 370” in its election manifesto. 

Nevertheless, the Minister's remarks had the Jammu and Kashmir Chief Minister, Mr. Omar Abdullah, up in arms with a quick, tweeted retort, “Mark my words & save this tweet - long after Modi government is a distant memory either J&K won’t be part of India or Art. 370 will still exist.” His saber-rattling continued on mainstream media too, making an abrogation of Article 370 seem apocalyptic. 

So then, is Article 370 really etched in stone in the Constitution of India? Is the verbiage so watertight that it renders any pursuit of the article’s abrogation into a blasphemous pipedream? Is the Article so tightly coupled with the accession of State of Jammu & Kashmir that it cannot be abrogated without severing the State from the Union? 

Well, here's my assessment of the Article at the center of the controversy. The dissection is essentially less legal, more linguistic because, in my opinion, the provision is as clear, plain and unambiguous as a piece of legislation can be. In other words, the provisions of the Article speak eloquently for themselves. 

Hence, this essay looks exclusively at the text and nothing but the text of the Article, with no prejudice either to the context or the content.

The text of the Article follows below: 

Header of Article 370

The header (or, annotated margin note) qualifies Article 370 as “temporary provisions”. 

In other words, the header unequivocally asserts that the Article was not meant to apply in perpetuity. It also minimizes the difficulty to amend the Constitution of India, whenever the necessity arises to abrogate, modify or extend the scope of Article 370.

 

Prelude of the Article  370, Section (1)

The prelude, “Notwithstanding anything in this Constitution”, indicates that Article 370(1) is free-standing. It follows that it relies on no other provision of the Constitution of India for its enforceability. Consequently, the Prelude also facilitates the ease of amendment of the Article, in accordance with the provisos contained therein, more so since no express restriction or prohibition of such amendment exists within the Article’s ambit. 

Article 370, Sections (1) (a) & (b)

Indeed a blind eye can be turned towards the provision in Article 370(1) (a), since Article 238 has been repealed. Hence, the provision is redundant. So I won’t waste any text or time analysing its ramifications.  

Paragraph (i) of Article 370(1) (b) 

Article 370(1) (b) defines the limits of parliamentary power for enacting laws for the State of Jammu and Kashmir. The text per se of Article 370(1) (b) (i) is patently unambiguous. 

The Instrument of Accession (which governs the accession of the State to the Dominion of India) specifies four main heads, viz., defense, foreign affairs, communications and ancillary matters. The Parliament is empowered to make laws for the State of J&K under Article 246 on all subjects in the Union and Concurrent Lists (List I and List III of Seventh Schedule) that the President declares, in consultation with the State Government, as corresponding to those enumerated in the Instrument of Accession. It has to be emphasized that the expression ‘...in consultation with...’ connotes nothing more than a discussion, formal or otherwise.

Paragraph (ii) of Article 370(1) (b)

Art. 370(1) (b) (ii) relates to subjects other than those mentioned in the Instrument of Accession. It stipulates that subjects, other than those in the Instrument of Accession, can also be brought within the purview of Parliament through a Presidential Order with the concurrence of the Government of the State. The phrase “...with the concurrence of...” clearly implies a need for the consent of or agreement with such declaration of the President.

Explanation of Paragraphs (i) and (ii)

The key to statutory interpretation of Article 370(1) (b) (i) and (ii) exists though in the ‘Explanation’ (reproduced below), which defines the term, "Government of the State."

      Explanation: For the purposes of this article, the Government of the State means the person for   

      the time being recognised by the President on the recommendation of the Legislative Assembly of the 

      State as the Governor of the State, acting on the advice of the Council of Ministers for the time being 

      in office.

It is crystal clear that the reference to ‘Government of the State’ in Article 370(1) (b) means the ‘Governor of the State (of Jammu & Kashmir)’, in whom the executive power of that State vests under the Constitution of India. It is stipulated too that the person, serving as the Governor of the State (of Jammu and Kashmir), has to be so recognised by the President on the recommendation of the Legislative Assembly of the State (of Jammu and Kashmir). 

In the Explanation though, the dangling modifier, “...acting on the advice of the Council of Ministers...,” presents some difficulty in interpretation. Nevertheless, if the Explanation is taken as a whole, it is apparent that the Governor of the State has to be recognized by the President, who: (a) accords such recognition based on the “recommendation of the Legislative Assembly of the State”; and, (b) acts on the "advice of the Council of Ministers..."  

A critical evaluation of the expression “...recommendation of the Legislative Assembly of the State...,” reveals that such recommendation is purely advisory in nature. It is surely meant to have guidance value and, at best, can only be an endorsement, and not a selection or approval, of the person designated / recognised as Governor of the State by the President. Neither does any explicit or implied provision in Article 370(1) (b) indicate that such “recommendation of the Legislative Assembly of the State” is binding on the President.  

In short, it is amply certain that the final arbiter on such recognition of the Governor / Government of the State of Jammu and Kashmir is the President of India, who acts on the advice of the Council of Ministers in the Union Government.  

Article 370(1), Clause (c)

Article 370(1) (c) reiterates, in no uncertain terms, that Jammu and Kashmir is an integral part of the territory of India (with its reference to Article 1 of the Constitution of India). It further expressly subjects the State to the provisions of Article 370, insofar as the federal link, and separation of powers thereof, between the Union of India and the State of Jammu and Kashmir is concerned. 

Article 370(1), Clause (d)

Article 370(1) (d) lays down that other provisions of the Constitution (i.e., besides Article 370) can be applied to the State of Jammu and Kashmir with or without “exceptions and modifications” by order of the President. However, this power is not to be exercised by the President without:

1. Consulting (and NOT seeking approval of) the State Government, i.e., the State Governor [as detailed in paragraph (i) of sub-clause (b) of Article 370(1)], if matters to be specified in such Order of the President pertain to those mentioned in the Instrument of Accession. 
2. Concurrence of the State Government, i.e., the State Governor [as detailed in paragraph (ii) of sub-clause (b) of Article 370(1)], if matters to be specified in such Order of the President relates to matters other than those mentioned in the Instrument of Accession. 

Article 370, Section (2)

Article 370(2) provides that if the Government of the State, i.e., the State Governor, were to give concurrence to such Order of the President before the convening of the Constituent Assembly of the State, for the purpose of framing the Constitution of the State, then, such Order “shall be placed before such Assembly for such decision as it may take thereon.”

It is obvious that Article 370(2) did envisage the convening of the Constituent Assembly of the State of Jammu and Kashmir. However, in view of the dissolution in 1957 of the Constituent Assembly, that had been convened in 1951 for framing and adopting of the Constitution of Jammu and Kashmir, this Article 370(2) too has exhausted itself. In other words, Article 370(2) is superfluous in the present context. 

Article 370, Section (3)

Again Article 370(3) is categorical in stating that despite the foregoing provisions of this Article, the President is empowered to declare, by public notification, the operation, restriction, cessation or abrogation of the Article in the country. The proviso though mandates that the recommendation, of such Executive Order of the President, by the Constituent Assembly of the State is necessary for the issue of such a notification.

It follows from a strict interpretation of the proviso to Article 370(3) that such recommendation of the Constituent Assembly is essential for the issue of any such notification amending or abrogating the Article. 

However, nothing in Clause (3) of the Article implies that such recommendation is either necessarily binding on the President or applicable despite a defunct, extinct Constituent Assembly. Hence, it stands to reason that with the dissolution of the Constituent Assembly, the proviso is today redundant. 

Conclusion

Thus, if one applies his mind to the provisions of Article 370, it will be apparent, through a process of logical deduction or rational construction or otherwise, that nothing in the text of the Article is so sacrosanct as to willy-nilly make its abrogation impossible.

But, who will step up to the plate for taming the monster called Article 370 of the Constitution of India?