Politically, it is a good thing that a temporary provision in India’s Constitution (Article 370) has ceased to be operative. The decision has been upheld on December 11, in three judgments (one main and two concurring) of the Constitution Bench of five judges of the Supreme Court: It has facilitated a complete integration of Jammu and Kashmir into the Union of India. If that was all that had happened, the unanimous judgment would have been and should have been welcomed. But this is not all that happened.
What was actually done by the Centre was, in my view, not according to the provisions of the Constitution, nor in accordance with well-settled principles of federalism, a basic feature of the Constitution as was held in a 1994 judgment of a Constitution Bench of nine judges.
Under Article 370 of the Constitution of India, 1950, read with Presidential Order No. 48 of 1954 passed there under, an important safeguard was introduced. Article 3 was applied to the erstwhile state of Jammu and Kashmir with a condition that its area (which in 1950 was 39,145 square miles — something not mentioned in any of the three judgments) would not be diminished by the executive, nor by Parliament, without the consent of the J&K State Assembly. However, contrary to this assurance, a very substantial diminution of the area of the State of J&K (of 22,836 square miles — again, not mentioned in any of the three judgments) had been effected by the Centre in August 2019, admittedly without the consent, and without even the knowledge of the inhabitants of Jammu and Kashmir. As for the consent of their representatives in the elected Legislative Assembly, this was avoided by the Assembly itself having been dissolved by the Centre a few months earlier, on December 19, 2018, when, under Article 356 of the Constitution, President’s rule (a euphemism for the central government’s rule) was imposed in the state.
What is also not mentioned in any of the three judgments is that not only was the area of the state of Jammu and Kashmir substantially diminished (from 39,145 square miles in January 1950 to just 16,304 square miles in August 2019), its status too was unilaterally altered from state to Union Territory (with the much diminished area) — a situation neither warranted nor justified by any provision in the Constitution.
Another important safeguard for the state of Jammu & Kashmir had been set out in Article 370 (3) itself as enacted in 1950. It read as follows: “(3) 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.”
Hence, the power of the President under Article 370 (which is, in fact, the power of the Centre) to declare the entire Article 370 inoperative, was to come into effect only if the precondition mentioned in the proviso to Article 370 (3) was fulfilled — the recommendation of the Constituent Assembly of the state of Jammu & Kashmir. Disregarding this, and also disregarding the true function of a proviso to a section, the Court in the main judgment has stated as follows: “Since the Constituent Assembly of Jammu and Kashmir had not yet been constituted when the Constitution of India was adopted, the proviso to Article 370 (3) merely encapsulated the ratification process as decided by the Ministry of States. The words ‘recommendation of the Constituent Assembly referred to in Clause (2) shall be necessary before the President issues such a notification’ as it appears in the proviso to Article 370(3) must be read in this context. Thus, the recommendation of the Constituent Assembly was not binding on the President to begin with.”
The conclusion of the Court that the recommendation of the Constituent Assembly is not binding on the President was based on the Court’s erroneous interpretation of Article 370 (3) as being in two separate parts. This is what the main judgment says to support its finding that Article 370(3) is in two separate parts: “The power under Article 370 (3) did not cease to exist upon the dissolution of the Constituent Assembly of Jammu and Kashmir. When the Constituent Assembly was dissolved, only the transitional power recognised in the proviso to Article 370 (3) which empowered the Constituent Assembly to make its recommendations ceased to exist. It did not affect the power held by the President under Article 370 (3)”.
What the main judgment has said is not only directly contrary to Article 370 (3), but also flies in the teeth of a prior decision of a Constitution Bench of five judges reported in AIR 1961 S.C. 1596. It stated: “a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule”
My conclusion, therefore, is that the present decision of the Supreme Court, even if politically acceptable, is not constitutionally correct.
The writer is a constitutional jurist and senior advocate to the Supreme Court
