Underscoring that the amendment of Jammu and Kashmir Constitution replacing ‘Sadri Riyasat’ by Governor was “against basic structure of the Constitution”, the Jammu and Kashmir High has observed that the State Legislature lacks the power to make such amendments.
The court’s observation came 50 years after the state legislature—in extraordinary situations—carried out amendment to the constitution vide the Constitution of Jammu and Kashmir (Sixth Amendment) Act 1965. The amendment replaced “Sadri Riyasat” by Governor.
“The elective status of Head of the State was an important attribute of Constitutional autonomy enjoyed by the State, a part of “Basic Framework” of the State Constitution and therefore not within the amending power of the State Legislature,” a bench of Justice Hasnain Massodi said while delivering a judgment on a petition seeking hoisting of state flag on offices of constitutional authorities.
“It is questionable whether the Constitution of Jammu & Kashmir (sixth Amendment) Act, 1965, to the extent it amended Section 26 and 27 of Constitution of Jammu and Kashmir and all connected provisions of the Constitution, satisfies the “Basic Structure” doctrine and falls within the ambit of power under section 147 of the State Constitution.”
“The Constitutional autonomy guaranteed to the State is Basic Structure of State Constitution and beyond amending power available to the State Legislature under Section 147 of the Constitution. One of important facets of autonomy, enjoyed by the State and therefore “Basic Structure” of the State Constitution as recommended by Basic Principles Committee, was “elected Head of State”. Section 26 of Constitution provided that Head of the State (Sadri Riyasat) shall be elected in the manner, provided under Section 27. The Head of the State as provided under Section 27, of the Constitution, was to be elected by people of the State through their representatives in State Legislature,” the court added.
“In absence of challenge to Jammu & Kashmir Constitution (sixth Amendment) Act 1965, it would be appropriate to leave the matter to State Legislature for taking measures as required to uphold the Constitution. The Legislature is equally under a constitutional obligation to uphold the Constitution and rectify an error, wherever necessary,” the court said and quoted a Jurist: “To perpetuate an error is no heroism and to rectify it is compulsion of conscience.”
Pointing out that both the Constitution of India and Constitution of Jammu and Kashmir have come into being through same process and have same origin, the court said: “In both cases a duly-elected Constituent Assembly was convened or ‘convoked’ with the specific task of framing the Constitution for the country and for the State respectively. What is true about Constitution of India as regards Basic Framework of the Constitution is true about the Constitution of Jammu and Kashmir.”
The court said the ‘Constituent power’ is to be distinguished from legislative power. “State legislature does not have “Constituent power. Section 147 of State Constitution does not make mention of “Constituent power”, though expression is used in Art 368 of Constitution of India,” it added.
“Even if state legislature is said to have Constituent Power, such Constituent Power is different from the Constituent power of the Constituent Assembly. It is to be appreciated that at the time Constitution is framed, Constituent Power is unfettered and without any limits. Constituent Assembly in exercise of its Constituent power is free to frame a Constitution with framework as agreed upon by it,” the court said.
But once the Constitution is framed, the court said, the “constituent power” is limited by “Basic Structure” of the Constitution and cannot be exercised to change “Basic structure” of the Constitution. Amending “Basic Framework” of the Constitution is therefore beyond amending power of the State Legislature, it said.
Citing Supreme Court judgments, the court said: “The power of amendment cannot be exercised to damage or destroy essential elements or “basic structure” of the Constitution, whatever these expressions may comprehend. The theory of basic structure is woven out of conspectus of Constitution and amending power is subjected to it, because changing Basic Structure is a “constituent power” available to Constituent Assembly and not constituent or legislative power available to the Legislature.”
It said: “Supremacy of the Constitution, democracy, independence of judiciary, rule of law, socialist, secular foundation of polity are amongst the Constitutional features that have been held to constitute “Basic Structure” of the Constitution and therefore not amendable in exercise of amending power provided under the Constitution.”
The court observed that with extension of the constitutional provision or law to the state, there is corresponding decrease in the sphere of autonomy of it. “By giving consent to extension of a constitutional provision or law, the people of State concede or surrender part of the autonomy covered by extended constitutional provision or law.”
“As Consultation or Concurrence is to affect autonomy of the State, it is consent of people of State conveyed through their duly elected Government that is contemplated under Article 370 of the Constitution of India.”
“Consultation” or “concurrence”, the court said, therefore cannot be that of Governor when the State is placed under Governor’s Rule under Section 92 of Constitution of Jammu and Kashmir, or Presidential rule under Article 356 of the Constitution of India.”
“President of India cannot have “Consultation” with Governor or seek his “concurrence” while extending Constitutional provision to the State or applying a law to the State, as the Governor having been appointed by President in terms of Section 27, Constitution of Jammu and Kashmir, it would not be “consultation” or “concurrence”, contemplated under Article 370 Constitution of India,” the court added.
“The Governor may be taken as “Government” for exercise of executive power during such rule, but not for “consultation” and “concurrence” required under Article 370 of the Constitution. This would amount to having consultation with or seeking concurrence of oneself and not representatives of people affected by the decision,” it added. Article 370 of the Constitution of India, the court said, “cannot be abrogated, repealed or even amended, not only because mechanism provided under Clause (3) Article 370 is no more available, but also because Constituent Assembly is presumed to have taken informed decision, not to recommend modification or change in the Article and to allow it to remain in the same form even after Constitution of the State came into force on 26th January 1957.”