Sixth Amendment & Article 356

Sixth Amendment & Article 356

The prelude and the aftermath

While Sixth Amendment was operationalized on April 10, 1965, GOI Ministry of Law proclamation carrying the Presidential Order vis-à-vis application of Article 356 to JK State carries the date—December 21, 1964. It was published in the Gazette of India on May 17, 1965/Vaisakha 27, 1887.

The timings of Sixth Amendment, of application of Article 356, of its publication in Gazette of India underlines a pattern, wherein the constitutional authority of JK State was made subservient to federal constitutional provisions. This was done by undermining the letter and spirit of temporary accession, which did not amount to merger. The fact of temporary accession not amounting to merger continues to be the take of regional mainstream as well as resistance political formations. In 2010, former Chief Minister Omar Abdullah emphasized it on the floor of JK Legislative Assembly. Former federal Home Minister—Chidambaram labeled the relationship ‘unique’. Implicit in the use of word was a different constitutional arrangement compared to States that merged with Indian Union. Presidential Order of December 21, 1964 was proclaimed, as per empowerment of the ‘Office of President’ by Article 370 Clause (1) wherein President may issue an order applicable to JK State, albeit with the concurrence of the Government of Jammu and Kashmir. The ‘Order’ relates:

1. (1) This Order may be called the Constitution (Application to Jammu and Kashmir) Third Amendment Order, 1964.

(2) It shall come into force at once.

         2.    In paragraph 2 of the Constitution (Application to Jammu and Kashmir) Order 1954, in sub-paragraph (13) (relating to Part XVIII), for clause (b), following clauses should be substituted, namely :——(b) in clause (1) of Article 356, references to provisions or provision of this constitution shall, in relation to the State of Jammu and Kashmir, be constructed as including references to provisions or provision of the Constitution of Jammu and Kashmir. (c) Article 360 shall be omitted’.

This brings into focus (a) Order 1954. (b) Sub-paragraph (13) (relating to Part XVIII) (c) Clause (1) of Article 356. (d) Article 360. Order 1954 is, ‘PRESIDENT’s MAJOR ORDER UNDER ARTICLE 370, DATED 14 MAY 1954, CO No. 48, ENTITLED THE CONSTITUTION (APPLICATION to Jammu & Kashmir) Order 1954. It is the Basic Order. The Order carried by Ministry of Law in New Delhi stands noted as S.R.O 1610 for general information. Sub-paragraph (13) (relating to Part XVIII) implies that Article 352 may not apply to State of Jammu and Kashmir unless on request and concurrence of the government. The said Article relates to imposition of emergency in India or a territory thereof, were the state be threatened by external aggression or armed rebellion. It was proclaimed in 1975 in India. In its non-application to State of Jammu and Kashmir, there was a rider (except as respects Article 354). Article 354 relates to according Presidential assent to appropriation of funds guided by (Articles 268 to 279) during the period of emergency.

Sub-paragraph (13) (relating to Part XVIII) (b) relates: Article 356, 357 and 360 shall be omitted. Article 360 relates to declaration of financial emergency in India or a territory thereof. What stood omitted in Presidential Order of May 14, 1954 became applicable in President’s order dated December 21, 1964, vis-à-vis Article 356, and by implication Article 357, meant to operationalize 356, hence a legal appendage. Article 356 is one among the articles ranging from 352 to 360 that relate to imposition of emergency in its various political/financial aspects and applications. We may get to study Clause (1) of Article 356 relevant to the subject under discussion. 

Article 356 relates to provisions in case of failure of constitutional machinery in State, wherein the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation act as per sub-clauses: (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. As per sub-clause (c) President is authorized to suspend in whole or in part the operation of any provisions of this constitution relating to anybody or authority in the State except powers vested in or exercisable by High Courts. 

 New Delhi did not trust JK’s existent provisions for constitutional exigencies empowering Sadar-i-Riyasat, as ‘Head of State’ was state centered, electable by JK Legislature. Exercising powers in exigencies did not entail reference to New Delhi. Hence, JK’s distinct constitutional provisions were made subservient to federal constitutional provisions by applying Article 356 and the pliant JK political executive and legislature collaborated by working out the Sixth Amendment. Reference to New Delhi became the ‘Mantra’. In the aftermath the ‘Mantra’ led to alienation, New Delhi is finding hard to address. Far from addressing it, the new RSS backed political dispensing seems bent upon widening alienation by proclaimed intention to fiddle with remaining constitutional safeguards, be it the much eroded shell shocked Article 370 or Article 35 A. New Delhi would do well to tread with care and work instead for much needed and much awaited conflict resolution.

Yaar Zinda, Sohbat Baqi [Reunion is subordinate to survival]