The unfortunate legal and constitutionalhistory of Kashmir has been fraught with various acts both direct and indirect,innocous and dangerous, benign and malignant. All these acts have consistentlycompromised the unique Constitutional position of the State. The autonomy, if Imay use that word, as guaranteed in the State Constitution and as supplementedby the rigors of Article 370 has been eroded so much in the past 60 years of ourConstitutional existence that, now as we speak, it is virually reduced to a’dead letter’. While we have had our fair share of constitutional betrayals inthe past, some attributable to the deftly superior legal machinations of theGovernments in the centre, some to the compromised, enamoured and emasculated Stategovernments, some to coerced consents and some just to nonchalance and cavalierdisposition of the Stake holders, yet the present constitutional onslaughttakes the proverbial Cake.
Therecent constitutional amendments and the consequent amending of the J&K
Reservation Act by the President by virtueof an Ordinance is an ex-facieunconstitutional Act. While writing an article of the present nature I am mindfulof the limitation that inheres in this Article because what follows is a legaland constitutional analysis of a constitutional power so in order to make itmore palatable the jargons and legalese would be minimized keeping thediscussion rudimentary.
There are two major legal arguments thathave to be appreciated when it comes to the present constitutional amendmentsand the consequent amending of the State Act. The First deals with theimplications of Article 370 of the Constitution of India (‘IC’ hereinafter) and the second to the powerof the President to amend a State Act (J&K Reservation Act in the presentcase) during the period of theproclamation under Article 356 (colloquially known as ‘the Presidents Rule’) ofthe Constitution of India.
The First argument is rather simple, and Ihave seen constitutional experts of the State comment on it when they say andquite astutely that the Constitution of India does not apply to the State ofJ&K of its own force (‘Propriavigore’) and has to be applied tothe State of J&K by resorting to the rigors of Article 370 of the IC. Article 370 in the relevant part provides amechanism for application of the IC to the State of J&K. It can be done bya presidential order which for its implementation requires the ‘consultation’or ‘concurrence’ of the State Government. The State Government for the purposeof Article 370 meant the Maharaja (now the Governor by amendment) acting on theaid and advise of the Council of Ministers (i.e. the State Cabinet). There areother finer distinctions of Article 370being the distinction between ‘consultation’ and ‘concurrence’ that pertains todifferent legislative fields as relatable to the Instrument of Accession or thescope of ‘modifications’ and ‘amendments’ of the Constitution or the fact thatvarious presidential orders have been issued in the past that have alreadyapplied the Indian Constitution in a modified form to the State of J&K, however those are not entirelyrelevant for the present controversy and may not detain us for the purpose ofthe present discussion. The upshot ofthe above is that every presidential order that applies any part of theConstitution of the India to the State of J&K whether in a modified oramended form requires the mandatory consultation or concurrence of the StateGovernment being the Governor acting upon the aid and advice of the Council ofMinisters. So, when the 77thConstitutional Amendment and the 103rd Constitutional amendmentwhich now form part of the Indian Constitution and were hitherto not applicableto the State of J&K are to be now applied to the State of J&K the’concurrence’ of the State Government is a prerequisite. Since the Assembly isdissolved and there is no Council of Ministers, the Governor, acting without theadvice of the council of Minsters, is legally incompetent to give suchconcurrence. The usage of the Words’ actingon the aid and advise of the Council of Ministers‘ specifically assumes allsignificance because when the Articlewas drafted it was done in a particular way to incorporate, with respect to anymatter concerning the disposition of the State of J&K, the mandatory viewsof the representatives of the State of J&K being the Council of Ministers. The power of the Maharaja was speciffically qualified by making any decision pertaiing toany aspect of Artcile 370 subject to the aid and advise of the council ofministers. The constitutional debates make it further clear that the Maharajawho was otherwise the sovereign head of the State had inducted a Council ofMinisters by a royal warrant dated 05.03.1948 and vested all the resposibilityof the Government with such Council. The follwing excerpt from theConstitutional Debates take the matter beyond the realm of doubt. M. GopalswamiAyyanagar who proposed and debated the Article 370 (then Article 306A ) in theConstitutent Assembly had, in the context of Council of Ministers and theMaharaja said that the Maharaja had ‘instituted a kind of responsible Governmentwith a Prime Minister and colleagues who would own collective responsibilityfor their acts and regard themselves as jointly responsible for all the acts ofthe Government‘.
So it waspredominantly the Council of Ministers that would take all decisions and owncollective responsibility and be jointly responsible for all acts of theGovernment for the purpose of Article 370 and the Maharaja would act only asper the aid and advise of such Council of Ministers. The Maharaja then and the Governor now aremerely nominated heads with no independent decision making power when it comesto the Article 370 of the IC. Thus, today thegovernor (being the nominated head of the State) acting without a Council ofMinisters is legally incompetent to give any concurrence to the application ofany part of the Constitution of India to the State of J&K. The unilateralaction of the Governor is insufficient compliance of Article 370 and is thus manifestlyvitiated in law.
There is however a speciouscounter-argument that could have led the Governor to give his concurrence. Alegally inept mind could have suggested to the Governor that by virtue of thePresidents Rule the function of the State Government now vested with thePresident and such function includes the duty to aid and advise the Governor,hence if the function of the State Government was delegated by the President tothe Governor, the Governor by such delegation had subsumed the function of theGovernment and could thus aid and advise himself for the material satisfactionof Article 370. Such a proposition as you must have gathered from the plainwording of it, is too grotesque to be accepted and would be alien to theworking of a Constitution. It would certainly not hold up to a Judicial scrutinybecause apart from being legally incongruous it patently militates against therationale behind the incorporation of the Article in the first place. The constitutional import of Article 370 isall to well known to make way for any such perverse argument. The importance ofthe aid and advise of the Council of Ministers being the electedrepresentatives of the People of J&K is what keeps the power grounded inthe democratic realm otherwise the safeguard of Artcile 370 would have been afools baragin. Clearly the Constitutional debates which are a valid aid ofinterpretation dispell such a notion. If such aid and advise is directly orindirectly dispensed with the decision would fall foul of the spirit as well asthe letter of Article 370 and would hence be unconstitutional.
The second more egregious argument pertainsto the fact that the President after having issued Proclamation under Article356 of the IC (‘Presidents Rule’) has amended a State Act (J&K ReservationAct) by issuing an Ordinance under Article 91 of the State Constitution. Thereis absolutely no discernible method to this madness. A constitutional heresy of sorts.
Itmust be understood that a Proclamation under Article 356 falls under Part XVIIIof the IC that deals with ‘Emergency Provisions’. Such provisions are atdeparture from the general working of the Constitution where the State Governmentand Union Government operate in different fields. Under Emergency Provisionschapter there is a lot of overlaing in which powers of the State Government andthe State Legislature can, in emergent situations, be drastically vested withthe President and the Parliament. However the exact and the only mechanism andmanner in which such things can be done is also specifically provided in the saidchapter. In the light of the above,consider the following. Whenever a Presidents Rule u/a 356 of IC is declared inany State of India the functions of the State Government vests with thePresident and the Power of the State Legislature i.e. the power to make oramend laws for the State vests with the Parliament of India. That is to saythat under the Presidents Rule, only the Parliament can make/amend laws whichotherwise the State Legislature is competent to make/amend. So, in essence, rightnow while J&K is under Presidents Rule only the Parliament could amend theJ&K Reservation Act and no other authority could do that. The President isby express language of Article 356 precluded from exercising any power of theState Legislature.
The followingArticle i.e. Article 357 however provides a mechanism in which the Parliamentcan delegate its newly acquired power of making/amending laws with respect tothe State Legislature to the President. That would require the Parliament topass an Act delegating its powers with respect to the State Legislature to thePresident. When such an Act is passed then and only then would the Presidenthave the power to amend the J& K Reservation Act, a State enactment. Theexamples when in the past the Parliament, while a State was under PresidentsRule, had enacted a law to empower the President to make/amend laws for a StateLegislature are many. e.g., The U P State Legislature (Delegation of Powers)Act 1973, West Bengal State Legislature (Delegation of Powers) Act, 1968, MadhyaPradesh State Legislature (Delegation of Powers Act) 1993 Tamil Nadu StateLegislature (Delegation of Powers) Act 1976 etc. Now what is sauce for geese issauce for gander. So, for all intents and purposes, like every other State underthe Presidents Rule, we also should have had a J&K State Legislature(Delegation of Powers) Act, 2019 passed by the Parliament delegating its powerto the President and empowering the President to amend any State Law in J&Kincluding the J&K ReservationAct. While the Parliament in its Wintersession approved the Presidents Rule in January 2019 no such Act was passed delegatingthe powers of the State Legislature that now vested in the Parliament, to thePresident.
The Parliament by doing no such thing whileit was in session kept the power with itself and in absence of any suchdelegation to the President, vested no power in the President to even touch anyState enactment leave alone amend it. There was no other way available in whichsuch delegation of power could be acheived because it is a principle of law inIndia that when the manner to do a thing is provided under law the thing has to be done in thatmanner alone and no other. Thus if there was no act of the Parliamentdeleagating the powers of the State Legislature to the President, the Presidentcould not have amended the J&K Reservation Act. If the President resortedto any other way to amend the J&k Reservation Act it would be manifestly’unconstitutional’.
But since its Kashmir and unconstitutionalliberties and misadventures can be taken, the President, advised by adifferently motivated Union Cabinet unfortunately took one.
The President astoundingly and against allknown legal canons issued an Ordinance under Article 91 of the StateConstitution to amend the J&K Reservation Act. An ordinance to put simplyis the constitutional prerogative of the President for the Centre and the Governorfor the State (both acting upon the aid and advise of the State Cabinet or theUnion Cabinet) to promulgate any Law thatmay be expedient provided the Parliament or the State Assembly are competent tomake such laws and that the Parliament or the State Assembly are not insession. An Ordinance can however never be issued for a State by the President duringa period of Proclamation under Article 356 amending an Act which falls withinthe realm of State Legislature. It is an impossibility and has never been donefor any other State. The period of Proclamation as pointed out before is an extra-ordinarysitutaion governed solely by Part XVIII of the Constitution and the onlymechanism that can be resorted to amend a State Legislature is the one providedunder Article 356 and 357 (which has been explained before). The general provision of an Ordinance underArticle 123 of the IC or Article 91 of the State Constitution is notcountennaced as mechanism to amend the State Act during a proclamation underArticle 356. There cannot be any automatic assumption of Power in the Presidentbecause the Parliament is not session. The express language of Article 356excluing the President for assuming the Power of State Legislature and theexpress command of Article 357 mandating how such power can be delegated wouldprohibit the President from usurping the power not belonging to it. Evenif the State Government had been underthe Governors Rule (which was valid only for 6 months and has now expired) eventhen the Governor despite having been given sweeping powers under Article 92 (GovernorsRule provision) could not issue an Ordinance under Article 91 like thePresident did in the present case because firstly there would have been noCouncil of Ministers to advise the Governor to do so and secondly because thepower to make laws during Presidents or Governors Rule are entirely differentfrom power of making laws through an Ordinance. They operate at different timesfor achieving different objects. One cannot be subsituted for the other. Its like chalk and cheese for the legallytrained mind. The laws made during Presidents Rule are qualitatively andconstitutionally all together different and distinct from Laws made through anOrdinance. While an Ordinance has a shelf life of six weeks from there-assembly of the State Legislature or the Parliament the laws made during PresidentsRule under Article 357 are valid forever unless amended or repealed by thecompetent State Legislature or Parliament as the case may be. It’s a travestythat one has maliciously substituted the other. What has happened in J&Khas absolutely no constitutional sanction. The entire act of giving concurrnce by the Governor without the aid ofthe Council of Ministers and the act of the President amending the J&KReservation Act through an Ordinance arelock stock and barell unconstituional acts.
Now the most important question that arisesis the underlying intent of these unwarranted Acts. The State hardly neededsuch ’emergent’ amendments in the firstplace. It was too late in the day for the otherwise belligerent centre to thinkabout reservations in the State of J&K. The timing of these amendmentsespecially when the State was in war-like situtaion makes the entire exercisesuspect. The answer is rather simple. It’s to my mind a concious drill to paveway for a greater consitutional damage in the future. A testing of waters for acalamity that could be presented to us in the future. If the present Acts passmuster then the same mechansim could be used in the near future to amend thePresidential Order of 1954 for abrogating Article 35 A, the final fig leaf ofour consitutional autonomy. Its not inconceivable to think that if the presentActs go unchallenged the next time weare under Presidents Rule, the Union can amend the Presidential Order of 1954 usingthe same present mechanism and by completely trammelling upon the will of thepeople and by relying on the concurrence of the Governor alone get rid ofArticle 35 A and to nail the coffin the President can issue an Ordinanceamending the local Transfer of Property Act, local State subject laws or anyother local Act that enures to our advantage thereby bidding a final adieu to our unique Constitutional Status. Thethought and the possibility of it hapening is enough to give one a cold shudder. Constitutional Integrity we must remember can only bepreserved, once damaged it cannot be repaired. We have to be vigilant. Its our constitutional duty to be on the qui vive for such designs. Despite our aversion towards elections wemust remember that a strong but accountable State Goverment is essential forthe State. Political onslaught ischecked by political means. Lot can be damaged in the periods of vaccum that weinvariably face during which fractured Governments are suspended. Its high timewe rework our political and legal strategy while we still can.
Until next time.
Theauthor is an Advocate by profession.