My
earlier blog posts on the vexatious issue of abrogation of Article 370 have focused on the following elements:
- A textual assessment of the provisions of the Article;
- The Constituent Assembly of India debate on the Article;
- The United Nations resolutions on the Jammu and Kashmir issue; and,
- The historical backdrop leading to the accession of the erstwhile princely State of Jammu and Kashmir with India.
In this piece, I look at Supreme Court judgments
related to Article 370 of Constitution of India to glean insights on its
interpretation and the ramifications thereof.
Value of Precedents
Value of Precedents
The Hon’ble Supreme Court has observed [by quoting
Maxwell in Vishnu Pratap Sugar Works (Private) Ltd. v. Chief Inspector of Stamps, UP; AIR 1968 SC 102]
that "a statute is an edict of the Legislature". Further, the Apex Court has
stated [in RMD Chamarbaugwala v. Union of India; AIR 1957 SC 628] that the court has "to ascertain the intent of them that make it." As
Salmond has espoused, the "duty of judicature is to act upon the true intention
of the legislature - the sententia legis."
Indeed, the essence of law lies in its spirit, not in
its letter; for the letter is significant only as being the external
manifestation of the intention. Besides, Pattanaik, J. has opined [in
District Mining Officer v. Tata Iron & Steel Co. in SLP(Civil) 13102 and 13107 of 1996 judgment] that "if a statutory provision is open to more than one interpretation, the
Court has to choose that interpretation which represents the true intention of
Legislature". MN Venkatachalliah, J., who has referred [in Dinesh Chandra Jamanadas Gandhi v. State of Gujarat, AIR 1989 SC 1011]
to such true intention of Legislature as the ‘legal meaning’ of statute, has
eloquently distinguished it from literal meaning.
Thus, it has been observed [in State of Haryana v.Sampuran Singh, AIR 1975 SC 1952]
that courts, faced with special case situations, have "creatively to interpret
legislation."
The marginal moulding or fine-tuning of legislation
during adjudication forms a vital source of law. Judicial decisions on
such "gray areas" of statute not only eliminate ambiguity, but also establish
precedents. Precedents possess the force of law and are binding in subsequent
proceedings, if only till such time that the precedent is either over-ruled or made superfluous through legislative amendment.
Few Principles of Interpretation of Statutes
In general, Courts strongly lean against a
construction which reduces the statute to a futility. Thus, the Apex Court had
held [in CIT v. S. Teja Singh, AIR 1959 SC 352]
that: "A statute or any enacting provision therein must be so construed as to
make it effective and operative ‘on the principle expressed in the maxim: ‘ut
res magis valeat quam pereat.’" Consequently, courts, while pronouncing upon
the constitutionality of a statute, start with a presumption in favour of
constitutionality and prefer a construction which keeps the statute within the
competence of the Legislature.
Yet, it may be possible to declare a ‘statute void’
theoretically in case of "absolute intractability of the language used" [M Pentiah v. Veeramallappa Muddala, AIR 1961 SC 1107], or when "it is impossible to resolve the ambiguity," or when "the language
is absolutely meaningless" [Tinsukhia Electric Supply Co. Ltd., v. State of Assam, AIR 1990 SC 123].
Other rulings have declared an "enactment as void for vagueness" [Kartar Singh v. State of Punjab, JT 1994 (2) SC 423]. The same sentiment has been expressed
in cases where "...persons applying it (the law in question) are in boundless
sea of uncertainty" [KA Abbas v. Union of India, AIR 1971 SC 481]
The Apex Court too has given up its earlier rigid view
that "...Constituent Assembly... debates... cannot be admitted as extrinsic aid
to the construction of the Constitution" [State of Travancore v. Bombay Co.Ltd., AIR 1952 SC 366]
in its later judgments. Thus, it was observed [in Indira Sawhney v. Union of India; AIR 1993 SC 477] that, "the debates in the Constituent Assembly can be relied
upon as an aid to interpretation..."
Interpretation of Article 370
With the above backdrop, let us take a look at the
Article in question. The provisions of the Article are in the picture below:
Non obstante Clause
As can be seen, Article
370(1) begins with the non obstante clause of:
"Notwithstanding anything
in this Constitution..."
The question has been raised
on whether a non obstante clause comes in the way of testing the provision
against the touchstones of basic features of the Constitution. The Supreme Court has
answered that question in the negative. It has ruled that in spite of
such a clause, the principle that no constitutional amendment can be made so as
to damage any basic feature of the Constitution shall prevail.
Accordingly, in P Sambamurthy v. State of Andhra Pradesh (AIR 1987 SC 663),
Art. 371D (5) was declared unconstitutional in spite of the presence of the
non obstante clause in Article 371D (10). Again it has been argued in RC Poudyal v. India (AIR 1993 SC 1804) that since Art.371F opens with a non obstante clause, other provisions of
the Constitution cannot limit the power of Parliament to impose conditions
under Clause (f). But, the SC rejected the contention.
Thus, in view of the above
precedents, it is clear that Article 370(1) is not etched in stone. All of Article
370(1) indeed must to be interpreted within the framework of the Constitution.
And, if the Constitution in its entirety permits abrogation of the Article 370(1),
then the non obstante clause imposes no fetters on such an endeavor.
Exemptions and Modifications
of the President
Interpretation of the phrase "...other provisions of
this Constitution shall apply in relation to that State subject to such
exceptions and modifications..." has been another hotbed for legal argument.
The Supreme Court has refused to subscribe to the view that the word
‘modification’, as used in Article 370(1) (d), is to be interpreted in a
‘narrow or pedantic sense'. A Constitution Bench has held [in Puranlal Lakhanpal v. President of India; AIR 1961 SC 1519]
that "...the word 'modification' used in Article 370(1) must be given the widest meaning
in the context of the Constitution and in that sense it includes an amendment
and it cannot be limited to such modifications as do not make any 'radical
transformation'."
In the opinion of the Hon'ble Court, the power to make
exceptions implies that the President can provide that a particular provision
of the Constitution would not apply to that State. Hence, if the President has
the power "to efface in effect any provision of the Constitution altogether in
its application to the State of Jammu and Kashmir", then the power to make
modifications must be considered in its widest possible amplitude.
Indeed, the ratio decidendi behind the judicial
decision of the Hon'ble Court in the Puranlal Lakhanpal case is impeccably rock
solid!
The Supreme Court of India has further bolstered this
view in a subsequent case [Sampat Prakash v. State of Jammu & Kashmir; AIR 1970 SC 1118],
wherein it held that the power under the Article 370 includes the power
to add, amend, vary or rescind. The rationale provided for the decision was
based on the provisions of Article 367, which references the General Clauses
Act, 1897. Under Section 21 of that Act, a power to issue a notification or
order includes a power to add, amend, vary or rescind such notification or
order.
Thus, Article 370 confers the President of India with
wide-ranging powers to alter the powers and privileges applicable to the State
of Jammu and Kashmir under the Constitution of India.
Consultation with the
Government of the State
Article 370(1) stipulates 'consultation with the Government
of the State' as a pre-requisite for any exception or modification of
provisions of the Constitution that relates to the matters specified in the
Instrument of Accession. As Chandrachud, J., has explained [in Union of India v. Sankal Chand Himatlal Sheth; AIR 1977 SC 2328], "deliberation is the quintessence of consultation." Further, the Apex Court has
elaborated [in MM Gupta v. State Of Jammu & Kashmir; AIR 1982 SC 1579]
that "consultation or deliberation is not complete or effective before the
parties thereto make their respective points of view known to the other or
others and discuss and examine the relative merits of their views."
Consequently, so long as the view of the Governor of the
State of Jammu and Kashmir is elicited, the President is empowered to specify
the applicability of provisions of the Constitution of India with regards to
matters in the Instrument of Accession, with suitable modifications or
otherwise.
Advice of the Council of
Ministers
The Explanation to Article 370(1) dictates that the
advice of the Council of Ministers is necessary. Some ambiguity exists on
whether the term 'Council of Ministers' refers to the Union Government or to
the State Government. Nevertheless, as I had pointed out in my earlier post,
it is the President who accords recognition to the Governor of the State.
Article 74 of the Constitution of India indeed indicates
that the President shall "act in
accordance with the advice tendered" by the Council
of Ministers and that such advice of the Council is binding.
Nevertheless, the Supreme Court examined, in Shamsher Singh v. State Of Punjab; AIR 1974 SC2192,
whether the President or the Governor is bound to act on aid and advice of
Council of Ministers. The seven-judge Constitution Bench in that case held:
"The President as well as the
Governor is the constitutional head or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the
Constitution on the aid and advice of his council of Ministers save in spheres
where the Governor is required by or under the Constitution to exercise his
functions in his discretion."
The sum and substance of the above is that the power of
Parliament, to make laws applicable to the State of Jammu and Kashmir, is not
only wide-reaching, but also pretty much absolute. It further establishes the
paramountcy of the Union Government over the State of Jammu and Kashmir.
Concurrence of the Government
of the State
In Mohd. Maqbool Damnoo v. State Of Jammu and Kashmir; AIR 1972 SC 963,
a five-judge Constitution Bench of the Supreme Court ruled:
“The essential feature of Article 370 sub-clause (1) (b)
and (d) is the necessity of concurrence of the State Government or the consultation
of the State Government. What the State Government is at a particular time has
to be determined in the context of the Constitution of Jammu and Kashmir....There
is no difficulty in holding that Article 370(1) (b) and Article 370(1) (d)
place no limitation on the framing and amendment of the Constitution of Jammu and
Kashmir. If there is a limitation it must be found in the Constitution of the
State.”
Article 147 of the
Constitution of Jammu and Kashmir though prohibits amendment of the following Articles:
- Article 3, which declares that "the State of Jammu and Kashmir is and shall be an integral part of the Union of India;"
- Article 5, which stipulates that "the executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India;"
- Article 147, which makes provisions for the Amendment of the Constitution (of Jammu and Kashmir); and,
- The provisions of the Constitution of India as applicable, in relation to the State.
As can be seen above, the
Constitution of Jammu and Kashmir imposes no constraints or restrictions on who
can be or cannot be deemed as the State Government under the Constitution of
India for according such concurrence to the "power of Parliament to make laws for the
State of Jammu and Kashmir on matters not in the Union and Concurrent Lists."
Therefore, it is unfortunate
that an eminent advocate like Mr. AG Noorani in his book, The Kashmir Dispute
1947-2012, has criticised the Hon'ble Supreme Court for validly and correctly
holding (in the Mohd. Maqbool Damnoo case), as per the Sixth Amendment of the Constitution of Jammu
and Kashmir, that "the Government of the State means...the Governor of the
State".
Recommendation of the
Constituent Assembly
Another contention of Mr. Noorani is that, "Article 370 cannot be abrogated or amended by recourse
to the amending provisions of the Constitution which apply to all the other
States; namely, Article 368. For, in relation to Kashmir... that (read: such
amendment) requires the concurrence of the State's government and
ratification by its Constituent Assembly."
Once again Mr. Noorani is on the wrong side of the
legal argument. My reasoning is based on the Doctrine of Impossibility (a common tenet of Contract Law), which has been eloquently
explained by the Supreme Court in the Narmada Bachao Andolan v. State of MP judgment on 11 May, 2011,
as follows:
"The Court has to consider and understand the scope of
application of the doctrines of "lex non cogit ad impossibilia" (the
law does not compel a man to do what he cannot possibly perform);
"impossibilium nulla obligatio est" (the law does not expect a party
to do the impossible); and impotentia excusat legem in the qualified sense that
there is a necessary or invincible disability to perform the mandatory part of
the law or to forbear the prohibitory. These maxims are akin to the maxim of
Roman Law, “nemo tenetur ad impossibilia (no one is bound to do an
impossibility) which is derived from common sense and natural equity and has
been adopted and applied in law from time immemorial. Therefore, when it
appears that the performance of the formalities prescribed by a statute has
been rendered impossible by circumstances over which the persons interested had
no control, like an act of God, the circumstances will be taken as a valid
excuse....
...Thus, where the law creates a duty or charge, and the
party is disabled to perform it, without any fault on his part, and has no
control over it, the law will in general excuse him. Even in such a
circumstance, the statutory provision is not denuded of
its mandatory character because of the supervening impossibility caused
therein."
Now, let us assume obtaining the 'ratification of Constituent Assembly of
Jammu and Kashmir' is a duty cast on the President, under the Constitution of
India, for any amendment or abrogation of Article 370. Then, by virtue of the
Doctrine of Impossibility, the President cannot be expected to comply with a
provision that is rendered impossible because of the dissolution of the
Constituent Assembly of Jammu and Kashmir. A point to be noted here is that the
Constituent Assembly of Jammu and Kashmir passed a resolution on 17
November, 1956, “declaring that the Assembly will stand dissolved on 26
January, 1957, having completed the work (i.e., the drafting of the Constitution
of Jammu and Kashmir) entrusted to it."
Indeed, the President of India cannot be faulted for the dissolution of the
Constituent Assembly of Jammu and Kashmir.
Article 370 and the Basic
Structure of the Constitution
The Hon’ble Apex Court of the
country held [in the seminal Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461]
that the power to amend the Constitution is to be found in Article 368 itself.
It was emphasized that provisions relating to the amendment of the
Constitution are some of the most important features of any modern
Constitution.
Further, the Full Bench of the
Supreme Court, which decided the case (split verdict), did not concede an unlimited amending power
to Parliament under Article 368. The amending power was subjected to one
very significant qualification, viz., that the amending power cannot be
exercised in such a manner as to destroy or emasculate the basic or fundamental
features of the Constitution. A constitutional amendment which offends the
basic structure of the Constitution is ultra vires.
The following features of our
Constitution were identified by their Lordships as constituting the 'basic
foundation and structure of the Constitution':
- Supremacy of the Constitution;
- Separation of powers between the legislature, the executive and the judiciary;
- Republican and democratic form of Government;
- Secular and federal characteristics of the Constitution;
- Dignity of the individual secured by the various fundamental rights and the mandate to build a welfare state contained in the directive principles;
- The unity and integrity of the nation; and
- Parliamentary system.
Subsequent judgments of the
Supreme Court have added 'protection and sustenance of the purity of the
electoral process' [in Kihoto Hollohon case; AIR 1993 SC 412]
and 'rule of law' [in Indira Gandhi v. Raj Narain; AIR 1975 SC 2299].
In a plethora of other cases, the Hon'ble Court has asserted that the
independence of judiciary is not only a basic feature of the Constitution [Indian Hotel & Restaurants v. The State of Maharashtra; 2006(3) BomCR 705],
but also a most essential characteristic of any free society [MB Sanghi, Advocate v. High Court of Punjab and Haryana; AIR 1991 SC 1834]
Any objective study of the
various aspects, identified by Courts as comprising the basic structure of our
Constitution, will show that no way can Article
370 be treated as a basic characteristic, which can neither be amended nor abolished.
Amendment of Article 370
under Article 368
There is no doubt that
Article 370 was designed to be of a temporary nature. It was included, as
explained by Sri. Gopalaswami Ayyangar, due to special circumstances prevailing in that State at that time (refer my post on the Constituent Assembly of India debates).
Article 370(3) states that
the President, by public notification, may declare that Art. 370 shall cease to
be operative, or shall be operative only with such exceptions, and
modifications, and from such date as he may specify. But, the proviso to
Article 370(3) provides that before the President can issue any such
notification, the recommendation of the Constituent Assembly of the State 'shall be necessary'.
Since the Constituent
Assembly of the State exists no more, Article 370(3) is no longer operative.
Therefore, if any modification is to be made to Article 370, recourse will have
to be had to Article 368, which pertains to amendment of the Constitution of
India.
Needless to say, reconvening
the Constituent Assembly of Jammu and Kashmir, for ratifying any constitutional
amendments which relate to that State, is preposterous. It is tantamount to
claiming that to amend the Indian Constitution one needs to resurrect the
Constituent Assembly of India.
As is well known, a
constituent assembly (also referred to as constitutional convention or
assembly) is a body of representatives assembled for the purpose of drafting
and adopting a constitution. A constituent assembly, a form of representative
democracy, is usually set up for its specific purpose, which it carries out in
a relatively short time. The assembly is then dissolved. Subsequent to such dissolution of the Constituent Assembly, constitutional amendments are
accomplished through procedures specified in the Constitution itself.
Conclusion
To recapitulate the foregoing
review of applicable case law, it is amply clear and certain that no
precedent either restricts the amendment or prohibits the abrogation of
Article 370. Nonetheless, given the political milieu within the country, the
Union Government needs a tenacious spine and copious spunk to broach the
subject of Article 370’s utilitarian value.It would be a major
achievement if the Government could force a frank and forthright debate on the topic.
But, does the Prime Minister have
the fortitude to stop pussyfooting and take the bull by its horns?
I, for one, surely hope so!!
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