Article 370 has not been abrogated or repealed yet: Then what has the President of India done?

The country today woke up to media reports that Article 370 of the Constitution of India has been abrogated. This provision of the Constitution lays down temporary provisions with respect to the State of Jammu & Kashmir.

The scope of this Article has been discussed at legal and political forums at length for decades.

This piece aims to provide an understanding of what the Union government has attempted to do today by way of the Presidential Order titled The Constitution (Application to Jammu & Kashmir) Order, 2019.

The biggest take away from the Presidential Order is that Article 370 has not been abrogated yet. But to understand the nuances of the provision, a few other aspects need to be discussed.

Before going into today’s order, two clauses of Article 370 have to be understood.

Clause (1)(d) of Article 370

The order issued by the President today is under this clause. It reads:

“Notwithstanding anything in this Constitution,

such of the other 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 that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.”

The clause preceding this clause states that Article 1 and 370 applies to Jammu & Kashmir. Read together, this would mean that aside from Articles 1 and 370, all the other Articles in the Constitution will apply to the State of Jammu & Kashmir subject to the exceptions and modifications made by the President. The same should, however, have consultation or concurrence of the state government – consultation if the subject is in the instrument of accession and concurrence if the subject is not in the instrument of accession.

Thus, this clause empowers the President to apply other Articles of the Constitution to the State of Jammu & Kashmir.

Clause 3 of Article 370

The second important clause is clause 3. It reads:

“Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

Thus, this clause empowers the President to repeal Article 370 or bring about modifications or specify exceptions to the application of Article 370.

However, such a Presidential Order under clause (3) of Article 370 can be issued only with upon the recommendation of the Constituent Assembly of Jammu & Kashmir, a body which was dissolved in the 1950s.

Today’s Presidential Order 

A Presidential Order abrogating or modifying Article 370 can be issued only under Article 370(3) for which the recommendation of the Constituent Assembly of Jammu & Kashmir is required.

Knowing this, the Presidential Order does not per se make any change directly to Article 370. Instead, it has amended Article 367 of the Constitution.

Article 367 of the Constitution contains nothing but some general rules regarding the interpretation of the Constitution.

By way of today’s Presidential Order, Article 367 has been amended. A new clause has been inserted into the said Article – clause (4).

The following are the major changes brought about by this new clause (4) of Article 367:

1. As per this new clause, any reference in the Constitution to the Government of Jammu & Kashmir shall be construed as a reference to the Governor of the State.
2. Likewise, any reference to the Sadar-i-Risayat (elected head of State) of Jammu & Kashmir shall be construed as reference to the Governor of J&K.
3. The Constituent Assembly of Jammu & Kashmir (which was dissolved long ago in 1950s) referred to in the proviso to clause (3) of Article 370 shall be read as Legislative Assembly of Jammu & Kashmir.

The first two changes effectively affect clause (1)(b) and (1)(d) in that the power to accord concurrence to Presidential Orders has now been given to the Governor in place of the state government and Sadar-i-Risayat.

The third change to the proviso to clause 3 is, however, crucial.

Clause 3 empowers the President to repeal Article 370 or bring about modifications or specify exceptions to the application of the provision.

However, such a Presidential Order under clause (3) can be issued only with upon the recommendation of the Constituent Assembly of Jammu & Kashmir.

Since the Constituent Assembly of the State had dissolved without recommending its abrogation, Article 370 had stood the test of time since the President was virtually powerless to abrogate this Article without a Constituent Assembly.

This would mean that Article 370 would have remained in the Constitution forever.

So what did the President do?

The President, instead of issuing a Presidential order under Article 370(3), has now issued a Presidential order under Article 370(1).

By way of the same, Article 367 has been amended. The amendment to Article 367 lays down interpretation rules for provisions in the Constitution pertaining to Jammu & Kashmir.

And by way of the said amendment, the reference to the Constituent Assembly in Article 370(3) has been replaced by Legislative Assembly. This now enables the President to repeal the provision with the concurrence of the Legislative Assembly of Jammu & Kashmir.

Some questions

1. The President has used Article 370 (1)(d) to amend Article 367 since Article 370 cannot be amended by a President Order under Article 370(1)(d).

Hence, amendment to Article 367 is carried out, which in turn has laid down a rule of interpretation for Article 370(3) by replacing ‘Constituent Assembly’ with ‘Legislative Assembly’. Is this a colourable exercise of power?

2. Even for a Presidential Order under clause (1)(d) the concurrence of the Government of the State of Jammu & Kashmir is required.

The Presidential Order issued today says that it has been issued with such concurrence. But the State is currently under President’s rule. This effectively means the concurrence of the Governor would have been obtained. Does this mean that anything which requires the assent of a State government can be achieved by placing the State under President’s rule and obtaining the concurrence of the Governor?

3. Can an Article be amended by way of a Presidential Order under Article 370(1)(d) and a whole new clause be inserted merely because the clause is limited in its application to the State of Jammu & Kashmir?

These issues might prop up in the event the Executive order is challenged before a Constitutional court.

[Read Presidential Order]