Article 367 an aid to understand the Constitution or a tool to amend it? Part I of Abrogation of Article 370

11, Oct 2023 | A Legal Researcher

The Supreme Court has reserved its judgement in the case regarding Abrogation of Article 370 after hearing extensive arguments from both the petitioners and the state (union government). While the judgement has been reserved, this article is part of a series that will present the arguments made by both sides (parties) in the matter. 

Before we go into the arguments made in the Supreme Court, it is important to understand the brief background of Article 370.

What was the status before 2019?

Article 370 of the Indian Constitution (before August 2019) had conditions regarding the state of Jammu and Kashmir (J & K) and the reach of Parliament in making laws for the state. The Article stated that India would not make laws applicable to Jammu & Kashmir except under the subjects of Defence, Communications and Foreign Affairs. If the Parliament wanted to make laws on other subjects, it could only do so with the ‘concurrence of government of the state.’ 

Additionally, the Article also stated that only Article 1-declaring India as a Union of States and the Article 370 are applicable to the state of Jammu and Kashmir. The President could pass an executive order applying provisions of the Indian Constitution to J&K. To entrench this special status, Art.370(3) stated that the special status of J&K could not be amended or repealed unless the Constituent Assembly of J&K recommended it. 

What happened in August 2019?

The President issued an important order- the Constitution (Application to Jammu and Kashmir) Order, 2019, which made a key change. The order added a new clause to Article 367 which dealt with an interpretation of the Constitution. The new clause exclusively was in relation to the state of J&K and it made a new addition. It stated that the term ‘Constituent Assembly’ in Article 370 should be construed as Legislative Assembly.  

Then, a second Constitutional Order was passed with the powers granted under the new Article 370(3). While the repeal or amendment of the earlier (read original) Article 370 could not be carried until the Constituent Assembly recommended it, the C.O. 272 (2019) made it possible for such amendment or repeal to be effectuate under a recommendation of the Legislative Assembly. Since the state was under President’s rule, with powers of both the Legislative Assembly and the Governor being vested in Parliament and the President respectively, the Parliament could recommend the President to amend or repeal the Article. 

After this order was passed, a resolution was passed by both the houses of Parliament recommending that Article 370 be amended. 

What would the new Article contain? The amended article states that all provisions of the Constitution shall apply to the state of J&K. Following this resolution, the President passed the constitutional order, adhering to the recommendation. Thus, the special status provided to the state of Jammu and Kashmir was removed. 

Thereafter, the Jammu and Kashmir Reorganisation Act, 2019 was passed by the Parliament, allowing the state to be divided into two union territories-Jammu and Kashmir, and Ladakh. 

Various petitions have been filed in the Supreme Court, questioning various parts of the process in which the article was abrogated. 

What happened in August 2023?

A five-judge bench of the Supreme Court comprising Chief Justice D.Y.Chandrachud, Justices S.K.Kaul, Sanjiv Khanna, B.R.Gavai and Surya Kant heard the petitions during August 2-17, 2023. The court has reserved its judgement. 

There are different lines of arguments undertaken by various counsel for the petitioners. They will be covered as the series progresses. 

This part will deal with the argument that questions the amendment to Article 367, allowing the interpretation of the term ‘Constituent assembly’ as the ‘legislative assembly’ in Article 370(3).

Whether Art. 367, the interpretative clause, can be used to effectively amend the Constitution of India?

Senior Advocate Kapil Sibal argued that the Constitutional Order 272 creating the new clause to Article 367, created a Constitutional myth and acted on it. 

An explanation to Article 370(1)(b) stated that the ‘Government of the State’ means the ‘person’ for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Governor of Jammu and Kashmir, acting on the advice of Council of Ministers of the State for the time being in office. 

Essentially, the Constitution stated that a person recommended by the legislature of the J&K and recognised by the President shall be the Governor acting under the advice of Council of ministers. This was later changed by doing away with the recommendation of Legislature, in 1965. This meant that the President directly appointed the governor. Why is this person important? This person’s concurrence shall be required for the President’s order to specify matters from Union or Concurrent Lists on which the Parliament could legislate upon vis-à-vis the state of J&K. 

With the amendment of Article 367, this person i.e., governor acting under the advice of council of ministers was to be construed as Governor of the J&K. And the term ‘Government of the State’ was to be construed as the Governor of J&K acting on the advice of Council of Ministers. 

It was argued that this was an executive order trying to create Governor and Council of ministers in a state where there are no council of ministers. 

Mr. Sibal argued that the President’s order does not interpret the term ‘Constituent assembly’ in Article 370 but amends it. 

In essence, the argument was the President, and the Parliament took over the powers of the Governor and state legislature after President’s rule was declared in the state under Article 356; but this power that the President and Parliament have acquired under Article 356 cannot be used to amend the Constitution. 

How was the power under Article 356 used to amend the Constitution? 

The Parliament, acting with (taking over) the powers of the legislature, went on to recommend to the President that the Article be abrogated. 

He argued that Article 367 is an interpretative clause and not a clause to substitute definitions and therefore, to substitute a whole definition of Constituent Assembly into Legislative assembly, is outside the power of Article 367. 

Senior Advocate Gopal Subramanium too, took a similar line of argument with respect to whether an article on interpretation i.e., Article 367 be used to amend the Constitution, in essence. The modification carved out for the application of entire constitution, he argued, was change in a provision of interpretation. 

He also argued that if ‘Constituent Assembly’ and ‘Legislative Assembly’ of a state are by their very nature different bodies, an interpretation clause cannot substitute former with the latter. 

Solicitor General Tushar Mehta argued, in response, that Article 367 was used before by the President to replace the words Sadar-i-Riyasat with Governor in the Constitution, in the case of  Mohd. Maqbool Damnoo v State Of J&K . Since there has to be a way to abrogate the temporary provision of Article 370, the way via Article 367 is a constitutional way. He also argued that when the Constituent Assembly is dissolved, only the proviso which requires the recommendation of the Constituent Assembly becomes powerless and not the President’s power to amend or repeal Article 370. Therefore, the Article 367 mechanism of using the Article on interpretation was taken up by the President.

In Essence:

Petitioners: Interpretative Article cannot be used to substitute a word with another very different word, having an effect of amending the Constitution itself. Interpretation is merely an aid to understand the original intent. 

Respondents: Given the temporary nature of Article 370, using the interpretative clause to breathe life into the proviso which has been dormant due to the dissolution of Constituent Assembly is constitutional. 

(The author is a legal researcher with the organisation)

(To be continued– In the next part, the arguments on permanent/temporary nature of the Article 370 and whether the President can abrogate Article 370 without the concurrence of the Constituent Assembly shall be discussed)