This is a question of autonomy, not integration: Faizan Mustafa on the constitutional background of Article 370

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. To understand the legal nuances behind the move, Arshu John, an assistant editor at The Caravan, spoke to Faizan Mustafa, the vice-chancellor of the National Academy of Legal Studies and Research, in Hyderabad.

Arshu John: Could you explain the implications of the presidential order? What changes does it introduce and how did it circumvent earlier limitations on modifying Article 370?
Faizan Mustafa: The point is that Article 370 has been invoked to undo the special status [of Jammu and Kashmir] under it. The presidential order that was issued has been issued under Article 370. So, the government has seen the utility of 370. One of the major highlights of [this] action is that the government of India, it seems—it has not done today, but that seems to be the road it is taking—is going to give up its own special powers under 370. If 370 was giving special status to Jammu and Kashmir, simultaneously it was giving huge power to the central government to issue presidential orders and do whatever it wants in Jammu and Kashmir—any provision of the constitution it can extend, any provision of the constitution it can suspend. To do it in respect of any other state, it would require a constitutional amendment. But for Jammu and Kashmir, they were doing it through presidential orders.

Now as and when the government finally scraps 370—as we know, it has not scrapped it [yesterday]—then this special power of the central government will go. Keeping this in mind, the government has downgraded Jammu and Kashmir’s status to a status lower than the status of an ordinary state in India. They had a special status and they are not even a state today, they will become a union territory. The centre will have a major say in their administration. That is why the public order and policing, which are state subjects on which any state can pass a law and take a decision, they have been now kept with the central government.

AJ: As you mentioned, the presidential order was made under Article 370 itself, but the sub-clause (1)(d) of the article requires the concurrence of the Jammu and Kashmir government. Is there any legal provision or judicial precedent that allows the governor to give concurrence instead of the government?
FM: No, common sense will dictate that the government of the state would mean a popularly elected government. But there have been occasions—I recall, during Congress governments, for instance, there was a similar situation where the governor Jagmohan’s concurrence was taken in place of government of the state, and that was a bad precedent [Jagmohan Malhotra served as the governor of Jammu and Kashmir between 1984 and 1989, and then again in 1990]. The whole idea is that Congress has also misused Article 370 and has been not only amending the Constitution [of India] under Article 370 but has also been amending the Constitution of Jammu and Kashmir—a power which it did not have under 370. So, it is the final nail in the coffin.

But if you look at the presidential orders that have been issued under Article 370 so far—as many as 45 of them—a large part of the Indian constitution had already been extended to Jammu and Kashmir. Now, today we are saying that all those orders are in a way withdrawn and we issue another order and we say that whole Constitution can be applicable to Jammu and Kashmir. So, a very small portion of the Constitution was left, which was not made applicable to Jammu and Kashmir and that has now been made applicable.

My take is that it was a question of the autonomy [of Jammu and Kashmir] rather than the integration of Kashmir with India, because integration of the state has already happened. The Constitution of Jammu and Kashmir clearly says that the integration is complete. My personal view is that probably subsequently they would like to amend the Constitution [of India], and probably changing the word “constituent assembly” [in Article 370] to “legislative assembly” through the presidential order may then be problematic.

AJ: In what sense? Could you elaborate?
FM: You can issue any order under Article 370 to extend any provision of the Constitution [of India] to Jammu and Kashmir. But to change the word to “governor” in place of “constituent assembly”—I think that is little problematic, because ultimately it goes against the constitutional pact we had made with Jammu and Kashmir by accepting the Instrument of Accession.

AJ: There have been Supreme Court decisions that have stated that Article 370 is not temporary and that any modification cannot be made without the recommendation of the Jammu and Kashmir government. Were these an impediment earlier?
FM: No, there was no impediment. It was a question of political will, or the constitutional commitment we have given to the people of Jammu and Kashmir. The presidential order says that it will not be notwithstanding any judgment, order, et cetera.

AJ: The presidential order has added a sub-clause to Article 367 of the Constitution, which pertains to the interpretation of certain terms. Is it legally permissible to add this sub-clause through an executive order and without a constitutional amendment?
FM: No, to Article 367, if you are doing anything, you would require a constitutional amendment. But you see, under Article 370, as it applies to Jammu and Kashmir, you can do anything. That is what the government has done.

AJ: But what about the sub-clause that it has added to Article 367?
FM: That is the precise point. On the one hand, [the government] has been criticising Article 35A—that through a presidential order, without amending process, how can you insert 35A. [Article 35A of the Constitution of India was inserted through a presidential order, in 1954, to create a special category of “permanent residents” of Jammu and Kashmir who are granted special rights in matters such as employment and acquisition of property.] This is what the government has been opposing. Now, it has done exactly the same thing. So, technically speaking, under presidential order, amendment to the Constitution, as it applies to Jammu and Kashmir, is possible.

AJ: In the event of a Supreme Court challenge, what would be the issues that the court would have to adjudicate on?
FM: The main question will be whether it is right that [as the presidential order has amended,] the legislative assembly will represent the constituent assembly. But more than that, I will say that it will require two to three years for the matter to come for hearing before the constitution bench.

AJ: Why is that?
FM: Because there are other matters pending before the constitution bench.

AJ: Is the bifurcation of Jammu and Kashmir constitutionally valid? What impediments did the Constitution impose before the presidential order?
FM: It is possible to bifurcate under Article 3, but again you need concurrence of the legislative assembly. But since the assembly is not in operation, that should not have been done. The Governor is a poor substitute of the legislative assembly.

AJ: In that case, for both issues, is that a central aspect—can the governor substitute the legislative assembly?
FM: It will be bad. As I was telling you, Congress has also done it. They had taken concurrence of the governor Jagmohan. This has been done—Article 370 has been misused earlier, it has again been misused now.

AJ: Did that face a constitution challenge earlier, when the Congress had done it?
FM: No, it was not challenged.

AJ: Whenever the court does hear it, how do you expect the court might respond?
FM: I am really not very sure because it will depend on the composition of the bench. If the court took the narrower view of the Constitution, then they will say that Article 370 has become permanent, the constituent assembly is not there. If they take the liberal view, then they will say that 370 is to be scrapped only with the concurrence of the legislative assembly. But, I feel like the presidential order issued today may be upheld eventually.

AJ: In your opinion, just going by the provisions of the Constitution, are these orders constitutionally valid?
FM: Difficult to say. Any order can be issued under 370, therefore, this order is also okay. But in a matter as fundamental as this, ideally the state legislative assembly should have been consulted. Similarly, the bifurcation should not have happened without the matter being referred to the state legislative assembly. I think that violation of Article 3 is absolutely problematic and Amit Shah has said in his response [in the Lok Sabha] that [Jammu and Kashmir will be given the] status as state, but he also said it is a long, long road to take, it is not going to happen soon. It is like the plebiscite that was promised—that when the situation improves, plebiscite will be done. But it has been 70 years. So, similarly from UT to state, again, I do not know how many decades it is going to take.

This interview has been edited and condensed.