Day-to-day Supreme Court hearings from Aug 2: The issues in challenge to Centre’s 2019 Jammu & Kashmir decisions

Road to the changes

Governor’s Rule was imposed in J&K on June 19, 2018, after the BJP withdrew support to the coalition government led by Chief Minister Mehbooba Mufti. Under Article 92 of the J&K Constitution, six months of Governor’s Rule was mandatory before the state could be put under President’s Rule.

The Legislative Assembly was dissolved on November 21 and, on December 12, before the end of six months, President’s rule was imposed on J&K. President’s Rule was subsequently approved by both Houses of the Parliament.

On June 12, 2019, President’s Rule was extended for another six months with effect from July 3 of that year.

Home Minister Amit Shah speaks in Parliament on Article 370, on Aug 5, 2019. (PTI)

Constitutional changes

On August 5, the Centre issued an order amending The Constitution (Application to Jammu and Kashmir) Order, 1954, and superseding it with The Constitution (Application to Jammu and Kashmir) Order, 2019. The new order made “all the provisions of the Constitution” applicable to J&K state. The government also amended Article 367 to add a new Clause (4), making the Constitution of India directly applicable to J&K.

On August 6, the President issued a declaration under Article 370(3) making all its clauses inoperative except the provision that all articles of the Constitution shall apply to J&K.

Change to Article 370

Article 370 provided for application of only Article 1 and Article 370 to Jammu & Kashmir. Other provisions of the Constitution did not automatically extend to J&K, but clause (1)(d) of Article 370 empowered the President of India to extend them through an executive order with the concurrence of the government of J&K.

Clause 3 of Article 370 empowered the President to “declare that this article shall cease to be operative” completely or partially but only if the Constituent Assembly of J&K recommended such an action. Since the Constituent Assembly of J&K no longer existed, having dispersed in 1957, this power of the President had ceased, unless a new Constituent Assembly came into being.

Article 370 explained that “for the purpose of this article”, the state government meant the Maharaja (later changed to Sadr-e-Riyasat) of J&K, acting on the advice of the council of ministers. But there was no state government either in J&K, so the President had no way to acquire the concurrence of the state government.

This meant there was no constitutional and legal mechanism available for the Centre to abrogate or amend Article 370.

The Centre, however, used the President’s powers under Article 370(1)(d) to amend Article 367, which provides guidelines to interpret the Constitution. A new clause was added to Article 367, replacing “Constituent Assembly of the State” referred to in Article 370(3) by “Legislative Assembly of the State”.

Thus, the presidential order route under Article 370(1)(d) was used to amend Article 370 itself, whereas Article 370 could have been amended only upon the recommendation of the Constituent Assembly under Article 370(3), not through Article 370(1)(d).

Parliament = state govt?

The President, while imposing his direct rule in J&K, had assumed all functions of the J&K government, taken over all the powers of the Governor under both the Indian Constitution and the J&K Constitution, and extended the powers of the state legislature to Parliament.

This meant that the President of India was in effect the J&K state government, and Parliament was in effect the state legislature. The powers of the J&K Constituent Assembly were passed on to the state legislature and, in this scheme of things, when the “state government” gave its concurrence to these monumental changes, it was, in fact, the President giving concurrence to his own decision.

It has been argued that since President’s Rule in a state is in the nature of an interim arrangement until an elected government is put in place, the administration under President’s Rule cannot take decisions that change the very constitutional structure of the state.

J&K Constitution

The move to abolish the J&K Constitution has been challenged because the Legislative Assembly of J&K had no power under the J&K Constitution to recommend any amendment to any provision of the Constitution of India.

Article 147 of the J&K Constitution barred the J&K Legislative Assembly from “seeking to make any change in provisions of the Constitution of India as applicable in relation to the State”. It has been argued that this means even the J&K Legislative Assembly wasn’t legally competent to give consent to the President’s order.

Downgrading to UT

The Jammu and Kashmir (Reorganisation) Act, 2019 bifurcated J&K into two Union Territories — J&K was an UT with a Legislative Assembly; Ladakh was without an Assembly.

There is no other instance in India’s constitutional history of a state being demoted to a UT, even though Parliament can under Article 3 create a new state by carving out territory from any state, uniting two or more states, or portions of different states. Parliament is also empowered to add area to an existing state, or change the existing boundaries of a state.

The Centre’s decision has been challenged on the ground that it violates Article 3. Also, the proviso to this article makes it incumbent on the President to refer any Bill proposing the reorganisation of a state to its legislature if the Bill “affects the area, boundaries or name of any of the states”.

It is argued that the view of Parliament on such a Bill cannot replace the view of the state legislature. Under President’s Rule, only those powers of a state legislature can be exercised as are essential to run the day-to-day affairs of the state. Parliament cannot provide the view of a particular state legislature which in essence is the opinion of the people of that state.

Colourable legislation

The challenge is also based on the argument that the constitutional changes are “colourable legislation” and thus legally untenable. The doctrine of colourable legislation is the legal principle that says what cannot be done directly cannot be done indirectly.

This doctrine has been reiterated by the Supreme Court, as well as constitutional courts in other countries.

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