Why Gautam Bhatia is wrong about Article 370

Gautam Bhatia, a once rising star in the field of jurisprudence- or perhaps it was science-fiction- writes-

To understand the legal issues, we need to begin with the language of unamended Article 370. Article 370, as is well known, limited the application of the provisions of the Indian Constitution to the state of Jammu and Kashmir. Under Article 370(1)(d), constitutional provisions could be applied to the state from time to time, as modified by the President through a Presidential Order, and upon the concurrence of the state government (this was the basis for the controversial Article 35A, for example). Perhaps the most important part of 370, however, was the proviso to clause 3. Clause 3 itself authorised the President to pass an order removing or modifying parts of Article 370. The proviso stated that:

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.

In other words, therefore, for Article 370 itself to be amended, the recommendation of the Constituent Assembly of J&K was required. Now, the Constituent Assembly of J&K ceased functioning in 1957. This has led to a long-standing debate about whether Article 370 has effectively become permanent(because there is no CA to give consent to its amendment), whether it would require a revival of a J&K CA to amend it, or whether it can be amended through the normal amending procedure under the Constitution.

The debate was short-lived because amendments were frequent. Wikipedia states 'forty-seven Presidential orders had been issued between 11 February 1956 and 19 February 1994, making various other provisions of the Constitution of India applicable to Jammu and Kashmir. All these orders were issued with the 'concurrence of the Government of the State' without any Constituent Assembly.^[42] Between 1955 and 1994, the President of India issued numerous Executive Orders amending Article 370 and thereby applied elements of the Constitution of India to Jammu & Kashmir. After the Constituent Assembly ceased to exist on January 26 1957,^[43] many of the Presidential orders relating to Jammu and Kashmir under Article 370 were issued when the state was under President's rule and had "no Kashmir government at all", states Jill Cottrell.^[44] The 'concurrence of the Government of the State' to these orders was based on a Rajya Sabha resolution or a nominee of the Indian National Congress-led central government in Delhi such as the Governor of the state.^[4

Bhatia, who lives in London and edits a Sci-fi ezine, chooses to be oblivious of this fact. He says-

C.O. 272, however, takes an entirely different path. C.O. 272 uses the power of the President under Article 370(1) (see above), to indirectly amend Article 370(3), via a third constitutional provision: Article 367. Article 367 provides various guidelines about how the Constitution may be interpreted. Now, C.O. 272 adds to Article 367 an additional clause, which has four sub-clauses. Sub-clause 4 stipulates that “in proviso to clause (3) of Article 370 of this Constitution, the expression ‘Constituent Assembly of the State referred to in clause (2)” shall read “legislative Assembly of the State.”
In other words, this is what has happened. Article 370(1) allows the President – with the concurrence of the government of J&K (more on that in a moment) – to amend or modify various provisions of the Constitution in relation to J&K. Article 370(3) proviso states that Article 370 itself is to be amended by the concurrence of the Constituent Assembly. C.O. 272, therefore, uses the power under 370(1) to amend a provision of the Constitution (Article 367) which, in turn, amends Article 370(3), and takes out the Constituent Assembly’s concurrence for any further amendments to Article 370. And this, in turn, becomes the trigger for the statutory resolution, that recommends to the President the removal of (most of) Article 370 (as the Constituent Assembly’s concurrence is no longer required).

This is very clever. Is it legal?

It is as legal as every other amendment that has occurred.

One serious objection is Article 370(1)(c). Article 370(1)(c) (unamended) stated that “notwithstanding anything contained in this Constitution, the provisions of Article 1 and this Article shall apply in relation to that State.”

Article 1 clarifies that the Union of India- i.e. the Central Government- gets to say what is or isn't a State. The country is not a federation.  The wording of this article highlights the supremacy of the Union Government.

This is absolutely crucial, because it makes clear that the power of the President to amend provisions of the Constitution in relation to J&K does not extend to Article 1 and “this Article”, i.e., Article 370 itself.

Why would the President want to amend either Article 1 or this article? Both give him power.

370(1)(d) makes it even clearer where it refers to the “other provisions” of the Constitution that may be altered by Presidential Order (and this is how the present Presidential Order is different from previous ones, such as those that introduced Article 35A). Article 370 itself, therefore, cannot be amended by a Presidential Order such as C.O. 272 (the one exception was a clarificatory amendment, which is not analogous to this one).

Bhatia is referring to Damnoo vs State of J&K (1972) which clarifies that the Order making the Governor of the State equivalent to the former Sadar-i-Risayat was not a 'backdoor' way of changing Article 370.

The judgment reads 'Clauses (aa) and (b) of article 367(4) as substitutedby C.O. 74 of 1965 (The Constitution Application to Jammu and Kashmir) Second Amendment Order, 1965 cannot be said to be an amendment of Article 370(1) by back door. The Explanation had become otiose and references to the Sadar-i- Riyasat in other parts of the Constitution had also become otiose. There were two alternatives, first, either to leave the courts to interpret the words "Government of the State" and give it its legal meaning or secondly to give legal meaning in a definition clause. What has been done is that by adding clauses (aa) and (b) a definition is supplied which the Courts would have in any event given. [1028 D-E] Accordingly, it must held that the amending Act was validly assented to by the Governor.
It is a fact that J&K is a troubled place menaced by foreign forces and terrorists.
It has frequently been under President's rule. Furthermore it has no separate sovereignty whatsoever. Thus, the interpretation given by the recent Presidential order is reasonable and not a 'backdoor' method to violate the constitution.

Bhatia begs to differ.

Now, it may be immediately objected that C.O. 272 does not amend Article 370: it amends Article 367. The point, however, is that the content of those amendments do amend Article 370, and as the Supreme Court has held on multiple occasions, you cannot do indirectly what you cannot do directly.

But you can directly do something which the Bench itself has said is not a 'backdoor' way of doing something wrong.

I would therefore submit that the legality of C.O. 272 – insofar as it amends Article 370 – is questionable, and as that is at the root of everything, it throws into question the entire exercise.

That something is questionable does not impugn the object of the exercise. In this case, the object is to improve security and governance. That is a valid object for the Government to pursue.

There is a second important point to be noted here. C.O. 272 says – as it must – that the concurrence of the government of the state of Jammu and Kashmir has been taken. However, Jammu and Kashmir has been under President’s Rule for many months now. Consequently, actually, the consent is that of the Governor. However, there are two serious problems with basing C.O. 272 upon the consent of the Governor. The first is that the Governor is a representative of the Central Government – like the President. In effect, therefore, Presidential Order 272 amounts to the Central Government taking its own consent to amend the Constitution.

Yet, this has happened on numerous occasions. The plain fact is that the Kashmiri Constitution has been interpreted by the Indian Supreme Court in a manner such that the Governor is the successor to the Sadar-i-Riyasat who, originally, was the Yuvaraja or Crown Prince of what was a Princely State. Incidentally, that Yuvaraja is still alive and approves of what has happened though he is a member of the Congress party.

There is, however, a more important issue. President’s Rule is temporary. It is only meant to happen when constitutional machinery breaks down in a state, and an elected government is impossible. President’s Rule is meant to be a stand-in until the elected government is restored. Consequently, decisions of a permanent character – such as changing the entire status of a state – taken without the elected legislative assembly, but by the Governor, are inherently problematic.

Nonsense! The Union Government can bifurcate a State or change its status entirely on its own. Andhra Pradesh's legislature was against bifurcation. Yet it happened anyway. It is not the case that India's sovereignty is conditional upon some particular type of political process. It is a different matter that the framers of the constitution favored a Democratic set up. However, they did not bind their successors in any manner whatsoever in this respect. 

Formally, they may be within the bounds of legality; however, as the Supreme Court held in D.C. Wadhwa, on the question of re-promulgation of Ordinances, formal legality can nonetheless, in effect, amount to a fraud on the Constitution.

There is no similarity between 'Ordinance Raj' in Bihar in the Eighties and a Presidential Order affecting a portion of the country menaced by rapacious foreign enemies.

Using the Governor to sign off on a Presidential Order that fundamentally alters the constitutional character of a federal unit appears, to me, to be straying dangerously close to the constitutional fraud line.

But this has been the usual practice since before I was born! Bhatia is younger than me. Why does he think there is a fraud here which the Bench has never detected? Is it because of 'transformative constitutionalism'? But that is a very foolish doctrine.

For these two reasons, therefore – first, on the indirect amendment of Article 370(3) proviso via 370(1), and secondly, on the use of the Governor as a substitute for the elected assembly in a matter of this kind – I would submit that there are serious legal and constitutional problems with Presidential Order C.O. 272 – which, of course, forms the basis of both the statutory resolution and the Reorganisation Bill.

Both reasons are invalid. Damnoo vs State of J&K says 'indirect amendment' is not an illegal 'backdoor' method of wrong doing. Using the Governor as the Sadar-i-Riyasat and as a substitute for the elected assembly if there is President's Rule has been normal practice.

The Supreme Court may, of course, decide otherwise. It has the power to overrule itself just as Presidential Orders can overrule themselves. However, the Government can always find other ways of achieving its objective if the Bench blocks one avenue. Indeed, the Judiciary may be reconstituted if it reads too much sci-fi and thinks it has some imaginary 'transformative potential' or other such magical power. However, there appears to be no such danger. The Supreme Court has refused to give an urgent hearing to this matter. It seems, nothing unprecedented has occurred and there is no prima facie threat to the fabric of the constitution. Lovers of science fiction, who yearn for an alternative reality, may be disappointed by the Bench's actions in this respect. However, they can overcome their bitter disillusion by teleporting through a wormhole, located in the anus of a dinosaur which is currently working as a systems analyst in Neasden, to a more salubrious Universe where they are not widely ridiculed for not getting rich by swindling people the way other shysters do.