Demystifying the flawed narrative surrounding the Article 370 amendments

(In the inaugural post on this blog, we shall demystify the flawed narrative surrounding the Article 370 amendment, which was brought about on 5th August last year. We shall be critiquing multiple aspects of the constitutional changes made in Jammu & Kashmir in future posts)

Through a Presidential order and a statutory resolution introduced in Parliament on the 5^th of August, the Union Government made significant amendments to Article 370 of the Indian Constitution. Through the statutory resolution that was introduced in Parliament, the Union Government deleted clause (2) and clause (3) of Article 370, and amended clause (1) to the effect that all provisions of the Indian Constitution shall apply to the State of Jammu & Kashmir, without any ‘modification or exception’. The amendment was followed by the Jammu & Kashmir Reorganization Bill, 2019, which converts the State of Jammu & Kashmir into two Union Territories of Jammu & Kashmir (hereinafter “J & K”) & Ladakh.

These decisions have generated considerable debate on both ends of the political and legal spectrum. However, in the months that have followed this controversial decision, the narrative surrounding the Article 370 amendments has been severely flawed. This has resulted in the propagation of several myths regarding the nature and scope of Article 370, and the changes that were made on 5^th August. In this piece, I aim to bring to light certain aspects of this flawed narrative, which should be kept in mind for any future discussion surrounding this amendment.

Has the ‘abrogation’ of Article 370 led to the ‘complete integration’ of J & K?

Due to the narrative created by the Union Government, the biggest myth regarding this amendment is that the ‘scrapping’ of Article 370 has led to the complete integration of J & K with the Union of India. This is flawed for two reasons. Firstly, the statutory resolution that was passed in Parliament only deletes clause (2) and clause (3) of Article 370, and amends clause (1). The amended clause (1) of Article 370 hence continues to exist, and states that all provisions of the Indian Constitution shall apply to the State of J & K without any modification or exception.

Secondly, Article 370 has never come in way of the ‘integration’ of J & K with the Union of India. While J & K acceded to India through the Instrument of Accession signed by Maharaja Hari Singh on 26^th October 1947, the complete integration of India-occupied J & K took place through certain other constitutional provisions. This is evidenced by Article 1 of the Indian Constitution, and Article 3 of the Constitution of J & K.  Article 1 mentions that India shall be a ‘Union of States’. The list of States that form an integral part of the Union are enlisted in Schedule 1. Schedule 1 accordingly mentions that the ‘Indian State of J & K’ is one of the States that constitute the Union.

This is supplemented by Article 3 of the J & K Constitution, which mentions that the State of J & K “is and shall be an integral part of the Union of India”. This reflected that despite having a separate Constitution, J & K continues to be integrated into India. The integration of J & K was hence a product of these constitutional provisions, along with the Instrument of Accession. The mere conferring of a special status can also not be construed in a manner that implies a lack of integration of that State with the Union. Under Article 371 of the Constitution, multiple other States have also been conferred a ‘special status’. For instance, Article 371A confers a special status on Nagaland, which inter alia provides that no parliamentary law that deals with naga customary law, ownership and transfer of land etc. can be made applicable without the express consent of the Nagaland Legislative Assembly.

The presence of such a constitutional provision does not in any way imply that Nagaland is not completely integrated into India. Similarly, Article 370 has never stalled the integration of J & K, and as I shall show below, it has only determined the constitutional relationship between the Sate of J & K and the Union of India.

The application of constitutional provisions and parliamentary laws to J & K

The Union Government has on the one hand contended that the 5^th August amendment was necessary as Article 370 forbid the application of parliamentary legislations such as the RTI Act, 2005, or the Prevention of Corruption Act, 1988. On the other hand, critics have contended that the amendment to Article 370 has significantly diluted the autonomy of J & K.

Before proceeding further, it is instructive to keep note of one important condition under which Maharaja Hari Singh signed the Instrument of Accession with the Indian Republic. Under the terms of the Instrument of Accession, the Indian Republic could make laws for J & K on only three subject matters – which were defence, foreign affairs and communications. In other words, only Indian laws that dealt with defence, foreign affairs and communications would be applicable in J & K. For all other matters, it was envisaged that J & K would have complete autonomy.

Now, Article 370, which was part of the original Constitution, made a significant modification to the vision expressed in the Instrument of Accession. Under the erstwhile Article 370(1)(b) and 370(1)(d), subject matters apart from those specified in the Instrument of Accession could be made applicable by the Union Government through a Presidential Order, after obtaining the concurrence of the J & K Government. Furthermore, all other provisions of the Indian Constitution could also be made applicable to J & K (with any modification if necessary) in the same manner. Hence, although J & K had a separate Constitution, all other provisions of the Indian Constitution could be made applicable to the State through a Presidential Order.

Since 1950, a number of Presidential Orders have been issued, which have made various provisions of the Indian Constitution applicable to the State. As Professor Faizan Mustafa points out, 260 out of 395 Articles and 7 out of 12 Schedules have been made applicable to J & K. Also, as Justice Nariman noted in State Bank of India v. Santosh Gupta (2016), all entries except only 4 entries of the Union List (in the Seventh Schedule) have been made applicable to J & K. Justice Nariman also put to rest one long-pending confusion regarding the applicability of parliamentary laws to J & K.  

He interpreted Article 370 to the effect that if a particular entry in the Union List or the Concurrent List is made applicable to J & K, then all parliamentary laws that fall within the ambit of that particular entry shall also be automatically applicable in J & K. This can be illustrated by referring to the issue that fell for consideration in Santosh Gupta. This case concerned whether the SARFAESI Act, 2002 was applicable in J & K. Justice Nariman held that the SARFAESI Act, 2002 fell within Entry 45 of the Union List, which dealt with banking. As Entry 45 had been extended to J & K, the SARFAESI Act shall automatically apply to the State, without any need to obtain the concurrence of the State Government.  

It is hence fallacious to argue that Article 370 entirely forbid the applicability of parliamentary legislations to J & K. The Union Government has also contended that because of Article 370, multiple beneficial legislations like the RTI Act, 2005 or the Prevention of Corruption Act, 1988 have not been made applicable to J & K. This is not entirely correct as J & K has had its own version of many such legislations, including its own right to information statute and statute for prevention of corruption. In fact, the J & K Reorganization Act, 2019 has repealed J & K’s Prevention of Corruption Act, 2006 and the J & K Right to Information Act, 2009. These repealed State legislations have been replaced by the corresponding Central legislation i.e. the RTI Act, 2005 and the Prevention of Corruption Act, 1988. It is hence incorrect to claim that prior to 5^th August, J & K has not had the benefit of such progressive legislations.

Now, let us once again refer to the amendment made to clause (1) of Article 370. As the amendment makes the entire Indian Constitution applicable to the State, it in a way supersedes and replaces all previously issued Presidential Orders. Now, as per the amended Article 370(1), all provisions of the Indian Constitution shall apply to J & K without any modification or exception. Hence, by virtue of this amendment, the small remaining chunk of the Indian Constitution which was not made applicable to J & K shall now be applicable. As the Union List and the Concurrent List is now applicable without any exception, all parliamentary legislations shall also be automatically applicable, without the need to obtain any kind of concurrence of the J & K Government. This is the limited change that has been brought about to the constitutional relationship between the J & K and the Union of India through the statutory resolution and the presidential order.

Concluding remarks: Has there been any significant dilution of autonomy through the amendment to Article 370?  

It is significant to recall here that as per the erstwhile Article 370, any provision of the Indian Constitution could be made applicable to J & K through a Presidential order, after obtaining the concurrence of the State Government. Hence, as AG Noorani has argued, the erosion and dilution of Article 370 began in the 1950s itself, when various provisions of the Indian Constitution were made applicable to J & K through Presidential Orders. The Article 370 amendment made on 5^th August has consequentially only led to a small dilution of this existing autonomy, by making all other constitutional provisions applicable to the State.

In my view, the greater dilution in autonomy has in fact occurred through the J & K Reorganization Act, 2019, which converts the State into two Union Territories of J & K and Ladakh. While the Union Territory of J & K shall consist of a Lieutenant Governor and an elected Legislative Assembly, the Union Territory of Ladakh shall be administered solely by the Lieutenant Governor. As the tussle between the Lieutenant Governor and the Delhi Government showed us, such an arrangement severely curtails the autonomy of an elected Government. There shall hence be a significant dilution of autonomy through the conversion of the State into a Union Territory, and not solely through the Article 370 amendment.

In conclusion, I would like to submit that the issues discussed above should be kept in mind for preventing the creation of a flawed narrative, and setting a correct legal perspective to the debate surrounding the Article 370 amendment.