A constitutional legerdemain?

The government might have transgressed the letter and spirit of the Constitution with its decision regarding Article 370 and the division of J&K along with its demotion to Union Territory status

Now that the Supreme Court has referred the government’s decision regarding Article 370 and the division of Jammu and Kashmir along with its demotion to Union Territory status to a five-judge Constitution Bench, which will start its hearings in October, a sharp light will be focussed on the constitutionality of these measures. In a comprehensive and very insightful interview for The Wire, Prof. Faizan Mustafa, vice-chancellor of the Nalsar University of Law, has presented a convincing case for arguing the government has indulged in constitutional legerdemain. It’s worth examining his reasoning closely.

First, Article 370. It hasn’t been abrogated. Although that verb is widely used, it only reflects ignorance of what the government has actually done. Instead, the provisions of Article 370 have been used to de-operationalise the article. This was, essentially, a three-stage process involving two separate re-interpretations of the constitution.

First, Clause 1 (d) of Article 370 empowers the President to apply “other provisions” of the Constitution to Jammu and Kashmir with the “exceptions and modifications” he may specify. This was used to add a clause to Article 367, which basically defines the terminology used in the Constitution. As a result, the phrase Constituent Assembly of Jammu and Kashmir was re-interpreted to mean the Legislative Assembly of the state. Then, this re-interpretation was applied back to Article 370. Consequently, it changed the meaning of Clause 3, which originally only permitted the de-operationalisation of the Article on the recommendation of the Constituent Assembly. Now that was possible on the recommendation of the state legislature.

Having thus altered the meaning of Article 370, the government took a third critical step. It used the fact that under President’s rule the powers of a state legislature are transferred to Parliament to further argue that the required recommendation of the Jammu and Kashmir legislature can now be exercised by Parliament. So, Parliament on behalf of the State Legislature, recommended that Article 370 be de-operationalised and the government accepted it. 

Now, in his interview, Prof. Mustafa not only explains in detail the intricate details of this constitutional trickery but points out why the Supreme Court could strike it down. First, Clause 1 (d) of Article 370 applies to “other provisions” of the Constitution. Can it therefore be legitimately used to modify Article 370 itself? Second, Kesavananda Bharati in 1973 imposed a statute of limitations on Parliament’s capacity to amend the Constitution. Surely, there are similar implied limits to what Article 370 can do to amend and modify the Constitution? If the first question suggests the government has breached the letter of the Constitution, the second accuses it of transgressing its spirit.

Let’s now come to the way the government has divided the state and demoted it to Union Territory status. Article 3 of the Constitution gives the government the power to do this provided the Bill for this purpose has first been referred by the President “to the legislature of that state for expressing its views thereon”. The government claims that because under President’s rule, the powers of the Jammu and Kashmir Assembly have been transferred to Parliament, this requirement was fulfilled on the Assembly’s behalf by Parliament. This is the precise point Prof. Mustafa questions.

He accepts that the powers of an Assembly can be transferred to Parliament but asks if the expression of its views can be similarly transferred? He believes not. He insists there is a distinct difference between powers and the expression of an opinion. The latter can only be voiced by the Assembly, which is the institution that represents the people of the state. 

So, if the way Article 370 has been de-operationalised was, arguably, the first sleight of hand, the manner in which the state has been divided and demoted is, possibly, the second. Both these issues will be examined by the Supreme Court’s Constitution Bench and many believe that this will be as fundamental a test of its integrity and commitment to the Constitution as the ADM Jabalpur case of the Emergency years.

 Let me mention one other point made by Prof. Mustafa. Since Article 370 has only been de-operationalised — and not abrogated — it remains a part of the Constitution. This means a future government, if it has the majority and the will, can reverse what this government has done. Whilst maintaining this is a theoretical possibility, Prof. Mustafa believes it’s unlikely any future government will thus act. But now the possibility of undoing what the government has done will first be exercised by the Supreme Court. We don’t know what conclusion it will come to but it’s possible it might agree with Prof. Mustafa’s reasoning and declare the government’s action unconstitutional.

If you want to hear Prof. Mustafa’s arguments in full click here.