The constitutionality of the Constitution (Application to Jammu and Kashmir) Order 2019 ("C.O. 272") and the Constitution (Application to Jammu and Kashmir) Order 2019 ("C.O. 273") issued by the President of India has been challenged in various Writ Petitions filed before the Hon'ble Supreme Court of India. Some of these writ petitions have also questioned the vires of the Jammu and Kashmir Reorganization Act, 2019.

In these Writ Petitions, the constitutionality of the C.O. 272 and C.O. 273 appears to be centred around the procedure adopted for applying these Constitutional Orders in relation to Jammu & Kashmir. The issues that have been raised are that the President of India has no power to apply these two Constitutional Orders, in the absence of the democratically elected Government in the State of Jammu & Kashmir, for the purposes of giving concurrence or consultation as provided in two provisos to Article 370 (1)(d) of the Constitution of India. It is stated that this act would undermine the very basis on which the (erstwhile) State of Jammu & Kashmir was integrated into Republic of India. Both the Instrument of Accession as also Article 370 of Constitution of India envisage a special autonomous status of the State of Jammu & Kashmir which could only be changed upon a recommendation of the Constituent Assembly.

In constitutional terms, the submissions stem from the basic premise that Article 370 (1)(d) of Constitution of India had compartmentalised the entire gamut of constitutional provisions for their application to Jammu & Kashmir in the two provisos.

The Writ Petitions rely on the Instrument of Accession signed by Maharaja Hari Singh to argue that the consent of the State Government is mandatory in all matters other than those specified in the Instrument of Accession. As per the Petitioners, it amounts "to an overnight abrogation of the democratic rights and freedoms guaranteed to the people of the State of Jammu & Kashmir upon its accession."

The Writ Petitions argue that effective concurrence with a duly elected State Government comprising of a Council of Ministers is a constitutional requirement that cannot be dispensed with under any circumstance. The submissions are deeply influenced by promises that obscurely flow from the Instrument of Accession and seem to suggest that the concept of concurrence under Article 370 (1)(d) of Constitution of India is derived from Clause 3 and 8 of the Instrument of Accession that saved the sovereignty and the exercise of any powers, authority and rights vested in the Maharaja except for matters ceded to the Indian Dominion under the Instrument of Accession.

However, the Writ Petitions have escaped noticing that just before the commencement of the Constitution of India on 26th November 1950, the Maharaja of Jammu & Kashmir, on 25th November 1950 issued a proclamation, which inter-alia, provided as follows:
"The Constitution of India shortly to be adopted by the Constituent Assembly of India shall in so far it is applicable to the State of Jammu & Kashmir, govern the constitutional relationship between this State and contemplated Union of India and shall be enforced in this State by me, my heirs and successors in accordance with the tenor of its provisions.

That the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State".

The bare reading of the aforesaid covenant to the proclamation shows that sovereignty that the Maharaja reserved to himself under the Instrument of Accession stood modified by the aforesaid proclamation. With the issuance of this proclamation, the only document that governed the constitutional relationship between India and Jammu & Kashmir was the Constitution of India, in so far as it became applicable to Jammu & Kashmir.

As such any reliance on the Instrument of Accession is inapposite. This position is supported by the Judgment in "Raghunathrao Ganpatrao Vs Union of India", 1994 Supp (1) SCC 191 where the Hon'ble Supreme Court ruled that various Instrument of Accessions signed with the princely States ceased to exist with the commencement of the Constitution of India and the source of rights and obligations flowed only from the Indian Constitution.

In respect of Jammu & Kashmir, Article 356 of the Constitution of India was extended to the State of Jammu & Kashmir by the Constitution (Application to Jammu and Kashmir) Third Amendment Order, 1964. Accordingly, it became permissible for the President of India to assume the powers of the Governor under the Constitution of India as applicable to Jammu & Kashmir and Jammu & Kashmir Constitution. There being no challenge to the proclamation issued by the President of India under Article 356 (1) of the Constitution of India, any application of the doctrine of constitutional morality, as pleaded in the Writ Petitions, remains debatable and may not survive the tide of practical implications flowing out of the President's Rule under Article 356 (1) of Constitution of India.

Having said that, the larger question that begs consideration is "Whether the two provisos to Article 370 (1)(d) of Constitution of India divide the entire Constitution of India (i.e. all provisions of the Indian Constitution) into two parts for its application to Jammu & Kashmir. This question is important as the consent of the State Government is the main fulcrum of challenge in the Writ Petitions. If the answer to the aforesaid question is no, can it be argued that certain provisions of the Constitution of India were to be applied by the President of India to the State of Jammu & Kashmir without any concurrence or consultation?

The answer is an emphatic yes. The salutary principle of interpretation of a proviso states that it qualifies the generality of the main enactment by providing an exception and taking out from the main provision, a portion, which but for the proviso would be part of the main provision [See J.K. Industries Ltd. Vs. Chief Inspector of Factories & Boilers, (1996) 6 SCC 665].
If the aforesaid rule of interpretation were applied to a proviso, it would mean that two provisos to Article 370 (1)(d) of Constitution of India do not exhaust the main provision for their application to Jammu & Kashmir either with consultation or concurrence. In other words, some provisions of the Constitution of India remain part of the main enactment and do not require consultation or concurrence of the State Government. But the larger questions that loom large by following this interpretation is which provisions of the Constitution of India are part of the main enactment i.e. Article 370 (1)(d) of Constitution of India?

Are there any provision of the Constitution of India which states that the President was under a constitutional obligation to apply to Jammu & Kashmir? Which will be those provisions? The answer is simple but one that escaped years of constitutional discourse only in respect of Jammu & Kashmir. The basic structure of the Constitution of India applies to both the Union of India and States without any exception.

Till date, the Hon'ble Supreme Court has never allowed any office established under the Constitution of India either be it the Parliament or the State Legislature or the Executive to abrogate the basic structure of the Constitution of India. The same theory also applies to Article 370 (1) of Constitution of India. The provisions that would fall within the scope of the main enactment will be those provisions of the Constitution of India, which form part of the basic structure as there can be no exception to or compromise with those principles. They are applicable to all bodies and offices established under the Constitution of India including the Office of the President of India.

Thus, any question as to the validity of C.O. 272 and C.O. 273 on the ground of lack of consent will take a backseat in respect of the application of basic structure to Jammu & Kashmir as those provisions would neither require consent nor consultation with the State Government. Those provisions were applicable to the State by the mere factum of its admission into the Indian Union ["R.C. Poudyal Vs. Union of India", AIR 1993 SC 1804]. However, the position was made deliberately different for Jammu & Kashmir, as many provisions of the Constitution of India constituting part of the basic structure were not applied to the State of Jammu & Kashmir when the President of India had issued the Constitution (Application to Jammu and Kashmir) Order, 1954.

For instance, in Article 16 (3) of Constitution of India, the words "Article 16 (3)" in Article 35 were effaced and Article 35-A was added in Part III in relation to the State of J&K precluding the enforcement of Part III by Indian citizens apart from permanent residents even if they infringed upon their fundamental rights. Part IV was completely obliterated by the President of India. Articles 325, 326, 327 and 328 dealing with eligibility for inclusion in electoral rolls, delimitation of constituencies etc. were effaced in relation to the elections to the Jammu & Kashmir State Legislature. Further, a proviso was added to Article 368, whereby, the Parliament was stifled to apply any constitutional amendment in relation to Jammu & Kashmir unless the procedure under Article 370 (1)(d) of Constitution of India is adopted.

On the strength of Article 35-A, the State Constituent Assembly enacted Section 6 of the State Constitution defining "Permanent Residents" by limiting it to those people who were "State Subjects" and had settled in the State of Jammu & Kashmir in the period before May 1944. Only their descendants could claim the status of permanent residents. By using Section 6 of the State Constitution, the State Legislature and the State Government had enacted various laws to exclude citizens other than permanent residents in matters of admission in the state-funded higher education institutions under Article 15 and 29 (2) of Constitution of India, in matters of employment in the State Services under Article 15 and 16 and in purchase and acquisition of property for shelter under Article 19 (1)(e) read with 19(1) (f) of Constitution of India.

Even the right to vote in state Assembly and local bodies elections was given exclusively to permanent residents despite the declaration of this right to adult suffrage as the most striking feature of our Constitution {See "Kesavananda Bharti & Ors. Vs. State of Kerala & Ors", (1973) 4 SCC 1 [S.M. Sikri, C.J.]}. Here, it requires emphasis that similar voting restrictions have been struck down by the United States Supreme Court in "Rice Vs. Cayetano", 528 U.S. 495 (2000) on the ground that such voting restriction were race-based as they limited voting rights to specific ancestry and no others. The ratio of the decision laid down in Rice applies not only to voting restrictions placed on citizens other than permanent residents but also to exclusive rights conferred on permanent residents in matters of employment and State Scholarships as they "demeaned a person by judging him on the basis of his ancestry instead of his or her merit and essential qualities".

All these omissions under the C.O. 1954 made it constitutionally suspect. According to a report submitted by the Wadhwa Committee, 47, 215 persons had migrated from West Pakistan in 1947 and settled in different areas of Jammu, Kathua and Rajouri. Since then, the people who migrated and their subsequent generations [third & fourth generations] who are numerically close to 2 lakhs had been residing and living in Jammu & Kashmir without enjoying any civil and political rights - a life of a destitute.

Similar treatment was meted to the 272 families of sweepers who were made to move to Jammu from Gurdaspur and Amritsar in the year 1957 at the behest of the State Government to take care of the crippled sanitation situation of Jammu caused by the strike of local sweepers. The apathy of the State Government to the plight of these people demanded action that would establish a constitutional setup in the State in accordance with the Constitution of India.

As the constitutional duty of the State is not only to protect rights, liberties and freedom of the individuals; but also to facilitate such rights, liberties and freedoms by taking positive steps in that direction [See "M. Nagaraj Vs. Union of India", (2006) 8 SCC 212], the C.O. 272 and C.O. 273 should be seen as a step in that direction. With the application of Part III & Part IV, Part VI, Part XV (Elections) and Part XX (Amendment of the Constitution) of the Constitution of India, the constitutional provisions which had been vacated by the President of India by the C.O. 1954, have been re-occupied by the C.O. 272 and C.O. 273. Most of the provisions falling in these parts constitute the basic structure of the Constitution of India. Hence, their application to the State of Jammu & Kashmir did not require any concurrence or consultation as those provisions were binding on the State Government. Such provisions cannot be made the subject matter of consent of the State Executive under the Constitution.

By virtue of his oath under Article 60 of the Constitution of India to uphold, preserve and defend the Constitution, the President is required to ensure the preservation of basic structure while exercising his powers under Article 370 (1)(d) of Constitution of India.

As such, the decision of the President to apply constitutional provisions constituting basic structure cannot be stifled by the State Government by refusing to give its concurrence under the garb of the proviso to Article 370 (1)(d) of Constitution of India as concurrence of the State Government in matters pertaining to basic structure is not even the subject matter of the provisos.
For years, the Hon'ble Supreme Court of India has taken the lead in the fight for the preservation of the basic structure. It has resisted several attempts to demolish the basic structure. This time, too it will equally be its responsibility to preserve these foundational principles while adjudicating the vires of C.O. 272 and C.O. 273.

The Constitution (Application to the State of Jammu and Kashmir) Order, 2019, CO 272, and 'The Jammu and Kashmir Reorganisation Act, 2019' are progressive constitutional movements to making India a vibrant India , because new constitutionalism is a definite step towards effective constitutional governance, which erase the misconceptions of ‘alliance between democracies and dynasties’ and present a ‘real Union of the Indian people based on the basic concept of the sovereignty of the Constitution of India’.

These two laws, therefore, are an acknowledgement that federalism is an integral part of incredible India and its mosaic is engraved and entrenched in the textual Constitution of India in the governance of Indian State to achieving the ends of unity and integrity of the Indian nation. The Union of States are interdependence on each other and not independent from each other.
The Constitution (Application to Jammu and Kashmir) Order 2019 ("C.O. 272") evaporates the soup and sauce of misinformation campaign about the Legality of Jammu Kashmir’s Accession to Union of India and the Separatists’ Campaign that had had Internal and External Dimensions as well as ramifications.

In the backdrop of the above new constitutional developments, the glaring defects in the contentious Articles 370 and 35-A of Constitution of India, have disappeared, vanished and departed, viz.,

First, Maharaja of the acceding State mentioned the existence of grave emergency in his State, whereas N. Gopalaswami Ayyangar, of course in connivance and collusion with Sheikh Abdullah at the behest/command/will of the then Prime Minister of India Pt. Jawaharlal Nehru, mentioned special conditions in the acceding State, which, of course, were not by any stretch of imagination ‘special conditions’. This indeed spoke about the contrived mindset of the trio- Gopalaswami Ayyangar, Sheikh Mohd. Abdullah and Pt. J. L. Nehru that brought out contrived provision through colourable approach Article 370 of Constitution of India.

Sardar Patel in his constitutional-nationalist-patriotism attitude refused to be a party to the notoriety of Article 370 of Constitution of India.

Second, Article 238 of Constitution of India that related to the States in Part B of the First Schedule stands repealed from the textual Constitution of India by the Constitution Seventh Amendment Act, 1956 with effect from 01. 11. 1956 after Reorganisation of the States. Article 238 of Constitution of India had since then lost its utility and relevance. Why was it allowed to remain in the language of Article 370 of Constitution of India? Its continuance till its abrogation by the Constitution (Application to Jammu and Kashmir) Order 2019 ("C.O. 272") speaks about constitutional wrong!

Third, the words ‘Instrument of Accession’ figuring in the lifeless language of Article 370 of Constitution of India were irrelevant, because ‘Instrument of Accession’ were matters of past history, and past history is dead history inasmuch as dead wood. The ‘Instrument of Accession’ have evaporated with the enforcement of the Constitution of Sovereign Socialist Secular Democratic Republic of India i. e Bharat on 26th January, 1950.

Fourth, the continuance of the words ‘Dominion of India’ in the language of lifeless Article 370 of Constitution of India did smell rat. Dominion of India had since evaporated with the enforcement of Democratic Republic of India i. e Bharat from 26th January, 1950. Dominion (dynasty) and Democracy cannot go together; they are sworn enemies and unfriendly to each other; and are not on talking terms with each other. Dominion (dynasty) has no place in democracy. Dominion is outmoded as well as obsolete in the annals of basic structure of Indian constitutional culture.

Fifth, reference to Constituent Assembly of the State in the passé and outmoded Article 370 of Constitution of India could not have been permeated after the Constituent Assembly of the State had over and done with its task by making the State of Jammu & Kashmir is and shall be an integral part of India. Its continuance seemed to be superfluous being an unessential feature as well as tenet and precept of constitutionalism.

Sixth, ‘Explanation’ in the house of the late Article 370 of Constitution of India was in fructuous, redundant, and superfluous in content and context.

Since Article 370 of Constitution of India was a temporary provision, as indicated by the marginal note, therefore, its abrogation is constitutional and is consistent with the principles of Indian Federalism (albeit in more crude terms). It was not an essential feature of the Constitution of India and not part of the basic structure of the Constitution and hence was not beyond amendment.

Written by: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected] and [email protected]

Articles on 370 Jammu and Kashmir Special Status

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2. Amendment in Article 370 of Indian Constitution
3. The Emergence of New Jammu And Kashmir
4. Whether Abrogation of Article 370 And Bifurcation of State of J and K Is Legitimate Or Not?
5. Articles 370 and 35A of the Constitution of India have now been Buried Ultimately
6. Does Scrapping of Art 370 Poses A Threat to Asymmetrical Federalism In India
7. Amendment of Article 370 And Issues Arising Thereof
8. It Is Not About Bhoomi Maatr It Is About Maatr Bhoomi Revocation of Article 370 And Article 35-A
9. Jammu And Kashmir No More Special
10. Brief on Article 370 And President Order Dated 05/08/2019
11. Legal History of Article 370 and 35A and Current Status
12. Article 35-A A Biggest Fraud on Constitution of India
13. Temporary provision about Jammu & Kashmir
14. Integration of J&K With India Is Now Full And Final
15. Jammu and Kashmir HC Upholds PM's Employment Package (2009) For Kashmiri Pandits Living In The Valley
16. J&K Now Stands Fully And Firmly Integrated With India
17. Daring Resolve Taken By Centre on Jammu And Kashmir
18. The Jammu and Kashmir Reservation (Second Amendment) Bill, 2019 and The Jammu and Kashmir Re organization Bill, 2019