Obviating the framework of Article 370 is intentionally mala fide: Senior advocate Rajeev Dhavan

09 August, 2019

On 5 August, the union home minister Amit Shah announced in the Rajya Sabha that the Bharatiya Janata Party government had effectively nullified Article 370 of the Indian Constitution, which granted special status to Jammu and Kashmir. Shah tabled two bills in the upper house that necessitated revoking the special status guaranteed to the state. In addition to the bills—the Jammu and Kashmir Reorganisation Bill, 2019 and the Jammu and Kashmir Reservation (2nd Amendment) Bill, 2019—Shah also brandished a presidential order, dated the same day, which extended all the provisions of the Constitution to the state, defanging Article 370. Both bills passed in the house.

Following Independence, Article 370 had formalised the terms of Jammu and Kashmir’s accession to the Indian union—as stipulated in the Instrument of Accession. Among other things, Article 370 mandated that barring certain subjects—such as defence and foreign policy—the central government was required to seek the concurrence of the Jammu and Kashmir government before it could legislate in the state.

Yet, as the state has been under President’s Rule since December 2018, the centre circumvented this requirement—the presidential order allowed the governor to assent in lieu of the state legislature. Through the reorganisation bill, the government split the state into two union territories—Ladakh and Jammu and Kashmir. That the centre acted in the absence of a state government and through an executive order also raised questions about the constitutional validity of its decisions.

On 6 August, the first challenge to the presidential order was filed before the Supreme Court. Arshu John, an assistant editor at The Caravan, spoke to Rajeev Dhavan, a senior advocate and constitutional lawyer, about the grounds for a challenge to the presidential order. Dhavan explained why the changes to Article 370 required a constitutional amendment and traced how the parliament has historically followed such a practice.

Arshu John: Could you comment on the presidential order and the changes to Article 370?
Rajeev Dhavan: This order seeks to supersede a constitution—Jammu and Kashmir has a constitution devised by a constituent assembly. Therefore, Article 370 came into being [in 1950] while Jammu and Kashmir had not established its constitution. Article 370 was transitional only to the extent, and until, Jammu and Kashmir constitution came into place. That is the temporary part.

There is nothing temporary about Article 370. The Jammu and Kashmir constitution [formed] by an independent constituent assembly is a fact—it is a legal fact, a spatial fact and a temporal fact. You cannot abolish it, as simple as that—it does not grow out of the [presidential] order.

The structure of Article 370 is such that if the government of India seeks to legislate on an issue that it is empowered to do so under the Instrument of Accession, it will consult the government of Jammu and Kashmir. If it [seeks to legislate] beyond that, it needs concurrence. The fact that Article 370 mentions the constituent assembly means that if the Indian government wanted to legislate during this period [when the constituent assembly was active], it will consult the constituent assembly. And if it’s beyond, you will consult under the Jammu and Kashmir constitution. So, the comparable part would be that you would consult, instead of the constituent assembly, the legislature of the state.

Just look at this [Presidential Order]. It says that the expression “Constituent Assembly of the State,” referred to in Article 370 shall mean the “Legislative Assembly of the State.” What does that mean? The legislative assembly under the Jammu and Kashmir constitution, obviously. Therefore, this order recognises the Jammu and Kashmir constitution—how in god’s name was it abolished?

AJ: How do you expect the court to respond? Would the court find substance in these arguments?
RD: The court should not say, “This is not judicially manageable.” The imprint of politics does not mean that the court will not hear questions of law and jurisdiction. And it would be a very sad day if they said that this is not judicially manageable. It is judicially manageable. They have to go into [whether it is] mala fide; they have to go into the interpretation of Article 370; they have to go into the interpretation of this presidential order. We do not want any judicial abdication.

AJ: The advocate ML Sharma has filed a petition in the Supreme Court challenging the presidential order.
RD: No, no, no. The carriage of proceedings in this important matter should not rest in petitioner ML Sharma, who, in my view, is a publicity-interest litigant.

AJ: What constitutional arguments arise from the order and the changes to Article 370?
RD: A challenge has to be made—the government has restructured an entire state without consulting the legislature, without consulting the people. And you have demoted [a state] and created two union territories. When you gave [special] powers to Delhi [in 1991] and you created a legislature, you inserted Article 239AA into the Constitution, and it was done through a constitutional amendment. So, why don’t you need an amendment for this?

When you created local legislatures for union territories, Article 239A—inserted [in the Constitution, in 1962] through the 14th amendment—said that parliament may by law create a body that will function as a legislature of a union territory. If there is a union territory you can give it a legislature, but how do you convert it from a state to a union territory? If you could [bring a constitutional amendment] for Delhi, then why the hell can’t you do it here?

Look at Article 164 of the Constitution [which pertains to the council of ministers in a state government]. This is not noted by people—the proviso to Article 164(1) says that the states of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha require a tribal welfare minister. The states of Chhattisgarh and Jharkhand were substituted for Bihar by a constitutional amendment. Now if you did that by constitutional amendment, what the hell are you doing now?

The only other state that acceded to us is Sikkim. And we put in Article 371F by the 36th constitutional amendment. For every one of these creations, you have amended the Constitution. Every single goddamn one of them.

My last argument, equally simple, is that this actually has nothing to do with vikas—development. The idea that people from outside cannot buy land is to protect the forests and to keep them with those people. This is a land policy across the board—in Himachal Pradesh, in Uttarakhand, in Arunachal Pradesh, in Sikkim. In some states you say, “It’s okay, we must protect the hill states”—but you do not want to protect Kashmir? All the hill states by and large are protected. You can start a business there, but you cannot own land—in many of the states.

Is Kashmir any different from Arunachal Pradesh or from Sikkim? If in Arunachal and Sikkim you can have a land policy because the border is there, what about the Pakistan border? Can anyone go there and buy? Can Mr Shah Mohammad, “the undetected terrorist,” go and buy it? Or can it only be Mr Ram Gopal? The idea of having certain states where land transactions cannot take place is consistent with the Constitution. You want to give the [Kashmiri] Hindu Pandits land? They are entitled. You want to give them protection? Give them protection. Because they are entitled. But you’re saying anybody from India can go there.

AJ: Could you comment on the constitutionality of the Jammu and Kashmir Reorganisation Bill which bifurcates the state?
RD: This bill subverts both democracy and federalism. It should have been in the nature of a constitutional amendment. Reorganisation is done under Articles 3 and Article 4 of the Constitution [which govern the formation of new states or alteration of boundaries]—like how you reorganised Maharashtra [in 1960, to create the state of Gujarat]. This [bill] means that you can take Uttar Pradesh tomorrow, split it up into seven states, and convert—since it’s so important to them—Prayagraj into a union territory. Tomorrow, Mumbai could be made into a union territory.

AJ: Why would this require a constitutional amendment?
RD: Let’s look at Article 368 [which describes the procedure and the powers of the parliament in amending the Constitution]. This procedure includes amendments to representation of the states in the parliament—such as Jammu and Kashmir—and to any of the lists in the Seventh Schedule [which delineates the subjects over which the central and state governments may each exercise jurisdiction].

Remember, [the National Capital Territory of] Delhi was created by a constitutional amendment [in 1991]. To create union territories, it doesn’t happen like this—you need a constitutional amendment. When you create a union territory, the lists of subjects that were applicable to that territory [when it was a state]—those lists you have tinkered with.

In any case, the procedure requires two-third majority of parliament. In addition to that, if the amendment seeks to make changes to all these [referring to the representation in parliament or the Seventh Schedule] it requires ratification of at least half the state legislatures.

So, first, it cannot be done because it is changing the Constitution—Article 370 is part of the Constitution. And since it’s a change in the Constitution, you have to follow the procedure in Article 368—you have to have two-thirds majority and you have to have ratification of half the state legislatures.

You cannot choose Articles 3 and Article 4. What happens in these articles? In Article 3, what you do is you take the consent of the state legislature. Consultation is the root if you are invoking Article 3—and it does not mean Satya Pal Malik, or the parliament substituting for consulting the representatives of a democracy. But going by what the government has done, the legislature of Jammu and Kashmir is now the parliament.

AJ: What about the argument that the President’s Rule empowers the governor of Jammu and Kashmir to give consent on behalf of the state legislature?
RD: President’s Rule is terrifying. It is terrifying. It is an emergency provision.

You have not consulted the state. And if you are a democracy, at least consult the people, consult somebody—you have consulted nobody. The use of President’s Rule to obviate the entire framework of Article 370 and the Jammu and Kashmir constitution could be called constitutional escapism. But in fact, it is intentionally mala fide.

AJ: The presidential order amends Article 367, and it could be argued that it technically has not amended Article 370.
RD: A change in definition does not mean anything. What does Article 367 have to do with it? All Article 367 is saying is how you interpret the Constitution. It says nothing about substantive provisions. It’s an interpretation provision. Article 367 does not give substantive powers.

AJ: But is that not what the government has done? They have added a provision to Article 367 to change the interpretation of Article 370.
RD: Yes, but it does not give them any power. You see, you cannot do indirectly what you cannot do directly—it’s as simple as that.

This interview has been edited and condensed.