Unconstitutional! Lock stock and barrel

The unfortunate legal and constitutional history of Kashmir has been fraught with various acts both direct and indirect, innocous and dangerous, benign and malignant. All these acts have consistently compromised the unique Constitutional position of the State. The autonomy, if I may use that word, as guaranteed in the State Constitution and as supplemented by the rigors of Article 370 has been eroded so much in the past 60 years of our Constitutional existence that, now as we speak, it is virually reduced to a ‘dead letter’. While we have had our fair share of constitutional betrayals in the past, some attributable to the deftly superior legal machinations of the Governments in the centre, some to the compromised, enamoured and emasculated State governments, some to coerced consents and some just to nonchalance and cavalier disposition of the Stake holders, yet the present constitutional onslaught takes the proverbial Cake.

The recent constitutional amendments and the consequent amending of the J&K

Reservation Act by the President by virtue of an Ordinance is an ex-facie unconstitutional Act. While writing an article of the present nature I am mindful of the limitation that inheres in this Article because what follows is a legal and constitutional analysis of a constitutional power so in order to make it more palatable the jargons and legalese would be minimized keeping the discussion rudimentary.

There are two major legal arguments that have to be appreciated when it comes to the present constitutional amendments and the consequent amending of the State Act. The First deals with the implications of Article 370 of the Constitution of India (‘IC’ hereinafter) and the second to the power of the President to amend a State Act (J&K Reservation Act in the present case) during the period of the proclamation under Article 356 (colloquially known as ‘the Presidents Rule’) of the Constitution of India.

The First argument is rather simple, and I have seen constitutional experts of the State comment on it when they say and quite astutely that the Constitution of India does not apply to the State of J&K of its own force (‘Propria vigore’) and has to be applied to the State of J&K by resorting to the rigors of Article 370 of the IC. Article 370 in the relevant part provides a mechanism for application of the IC to the State of J&K. It can be done by a presidential order which for its implementation requires the ‘consultation’ or ‘concurrence’ of the State Government. The State Government for the purpose of Article 370 meant the Maharaja (now the Governor by amendment) acting on the aid and advise of the Council of Ministers (i.e. the State Cabinet). There are other finer distinctions of Article 370 being the distinction between ‘consultation’ and ‘concurrence’ that pertains to different legislative fields as relatable to the Instrument of Accession or the scope of ‘modifications’ and ‘amendments’ of the Constitution or the fact that various presidential orders have been issued in the past that have already applied the Indian Constitution in a modified form to the State of J&K, however those are not entirely relevant for the present controversy and may not detain us for the purpose of the present discussion. The upshot of the above is that every presidential order that applies any part of the Constitution of the India to the State of J&K whether in a modified or amended form requires the mandatory consultation or concurrence of the State Government being the Governor acting upon the aid and advice of the Council of Ministers.

So, when the 77th Constitutional Amendment and the 103rd Constitutional amendment which now form part of the Indian Constitution and were hitherto not applicable to 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 is dissolved and there is no Council of Ministers, the Governor, acting without the advice of the council of Minsters, is legally incompetent to give such concurrence. The usage of the Words’ acting on the aid and advise of the Council of Ministers’ specifically assumes all significance because when the Article was drafted it was done in a particular way to incorporate, with respect to any matter concerning the disposition of the State of J&K, the mandatory views of 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 to any aspect of Artcile 370 subject to the aid and advise of the council of ministers. The constitutional debates make it further clear that the Maharaja who was otherwise the sovereign head of the State had inducted a Council of Ministers by a royal warrant dated 05.03.1948 and vested all the resposibility of the Government with such Council. The follwing excerpt from the Constitutional Debates take the matter beyond the realm of doubt. M. Gopalswami Ayyanagar who proposed and debated the Article 370 (then Article 306A ) in the Constitutent Assembly had, in the context of Council of Ministers and the Maharaja said that the Maharaja had ‘instituted a kind of responsible Government with a Prime Minister and colleagues who would own collective responsibility for their acts and regard themselves as jointly responsible for all the acts of the Government’.
So it was predominantly the Council of Ministers that would take all decisions and own collective responsibility and be jointly responsible for all acts of the Government for the purpose of Article 370 and the Maharaja would act only as per the aid and advise of such Council of Ministers. The Maharaja then and the Governor now are merely nominated heads with no independent decision making power when it comes to the Article 370 of the IC. Thus, today the governor (being the nominated head of the State) acting without a Council of Ministers is legally incompetent to give any concurrence to the application of any part of the Constitution of India to the State of J&K. The unilateral action of the Governor is insufficient compliance of Article 370 and is thus manifestly vitiated in law.
There is however a specious counter-argument that could have led the Governor to give his concurrence. A legally inept mind could have suggested to the Governor that by virtue of the Presidents Rule the function of the State Government now vested with the President 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 to the Governor, the Governor by such delegation had subsumed the function of the Government and could thus aid and advise himself for the material satisfaction of Article 370. Such a proposition as you must have gathered from the plain wording of it, is too grotesque to be accepted and would be alien to the working of a Constitution. It would certainly not hold up to a Judicial scrutiny because apart from being legally incongruous it patently militates against the rationale behind the incorporation of the Article in the first place. The constitutional import of Article 370 is all to well known to make way for any such perverse argument. The importance of the aid and advise of the Council of Ministers being the elected representatives of the People of J&K is what keeps the power grounded in the democratic realm otherwise the safeguard of Artcile 370 would have been a fools baragin. Clearly the Constitutional debates which are a valid aid of interpretation dispell such a notion. If such aid and advise is directly or indirectly dispensed with the decision would fall foul of the spirit as well as the letter of Article 370 and would hence be unconstitutional.
The second more egregious argument pertains to the fact that the President after having issued Proclamation under Article 356 of the IC (‘Presidents Rule’) has amended a State Act (J&K Reservation Act) by issuing an Ordinance under Article 91 of the State Constitution. There is absolutely no discernible method to this madness. A constitutional heresy of sorts.
It must be understood that a Proclamation under Article 356 falls under Part XVIII of the IC that deals with ‘Emergency Provisions’. Such provisions are at departure from the general working of the Constitution where the State Government and Union Government operate in different fields. Under Emergency Provisions chapter there is a lot of overlaing in which powers of the State Government and the State Legislature can, in emergent situations, be drastically vested with the President and the Parliament. However the exact and the only mechanism and manner in which such things can be done is also specifically provided in the said chapter. In the light of the above, consider the following. Whenever a Presidents Rule u/a 356 of IC is declared in any State of India the functions of the State Government vests with the President and the Power of the State Legislature i.e. the power to make or amend laws for the State vests with the Parliament of India. That is to say that under the Presidents Rule, only the Parliament can make/amend laws which otherwise the State Legislature is competent to make/amend. So, in essence, right now while J&K is under Presidents Rule only the Parliament could amend the J&K Reservation Act and no other authority could do that. The President is by express language of Article 356 precluded from exercising any power of the State Legislature.
The following Article i.e. Article 357 however provides a mechanism in which the Parliament can delegate its newly acquired power of making/amending laws with respect to the State Legislature to the President. That would require the Parliament to pass an Act delegating its powers with respect to the State Legislature to the President. When such an Act is passed then and only then would the President have the power to amend the J& K Reservation Act, a State enactment. The examples when in the past the Parliament, while a State was under Presidents Rule, had enacted a law to empower the President to make/amend laws for a State Legislature are many. e.g., The U P State Legislature (Delegation of Powers) Act 1973, West Bengal State Legislature (Delegation of Powers) Act, 1968, Madhya Pradesh State Legislature (Delegation of Powers Act) 1993 Tamil Nadu State Legislature (Delegation of Powers) Act 1976 etc. Now what is sauce for geese is sauce for gander. So, for all intents and purposes, like every other State under the Presidents Rule, we also should have had a J&K State Legislature (Delegation of Powers) Act, 2019 passed by the Parliament delegating its power to the President and empowering the President to amend any State Law in J&K including the J&K Reservation Act. While the Parliament in its Winter session approved the Presidents Rule in January 2019 no such Act was passed delegating the powers of the State Legislature that now vested in the Parliament, to the President.
The Parliament by doing no such thing while it was in session kept the power with itself and in absence of any such delegation to the President, vested no power in the President to even touch any State enactment leave alone amend it. There was no other way available in which such delegation of power could be acheived because it is a principle of law in India that when the manner to do a thing is provided under law the thing has to be done in that manner alone and no other. Thus if there was no act of the Parliament deleagating the powers of the State Legislature to the President, the President could not have amended the J&K Reservation Act. If the President resorted to any other way to amend the J&k Reservation Act it would be manifestly ‘unconstitutional’.
But since its Kashmir and unconstitutional liberties and misadventures can be taken, the President, advised by a differently motivated Union Cabinet unfortunately took one.
The President astoundingly and against all known legal canons issued an Ordinance under Article 91 of the State Constitution to amend the J&K Reservation Act. An ordinance to put simply is the constitutional prerogative of the President for the Centre and the Governor for the State (both acting upon the aid and advise of the State Cabinet or the Union Cabinet) to promulgate any Law that may be expedient provided the Parliament or the State Assembly are competent to make such laws and that the Parliament or the State Assembly are not in session. An Ordinance can however never be issued for a State by the President during a period of Proclamation under Article 356 amending an Act which falls within the realm of State Legislature. It is an impossibility and has never been done for any other State. The period of Proclamation as pointed out before is an extra-ordinary situtaion governed solely by Part XVIII of the Constitution and the only mechanism that can be resorted to amend a State Legislature is the one provided under Article 356 and 357 (which has been explained before). The general provision of an Ordinance under Article 123 of the IC or Article 91 of the State Constitution is not countennaced as mechanism to amend the State Act during a proclamation under Article 356. There cannot be any automatic assumption of Power in the President because the Parliament is not session. The express language of Article 356 excluing the President for assuming the Power of State Legislature and the express command of Article 357 mandating how such power can be delegated would prohibit the President from usurping the power not belonging to it. Even if the State Government had been under the Governors Rule (which was valid only for 6 months and has now expired) even then the Governor despite having been given sweeping powers under Article 92 (Governors Rule provision) could not issue an Ordinance under Article 91 like the President did in the present case because firstly there would have been no Council of Ministers to advise the Governor to do so and secondly because the power to make laws during Presidents or Governors Rule are entirely different from power of making laws through an Ordinance. They operate at different times for achieving different objects. One cannot be subsituted for the other. Its like chalk and cheese for the legally trained mind. The laws made during Presidents Rule are qualitatively and constitutionally all together different and distinct from Laws made through an Ordinance. While an Ordinance has a shelf life of six weeks from the re-assembly of the State Legislature or the Parliament the laws made during Presidents Rule under Article 357 are valid forever unless amended or repealed by the competent State Legislature or Parliament as the case may be. It’s a travesty that one has maliciously substituted the other. What has happened in J&K has absolutely no constitutional sanction. The entire act of giving concurrnce by the Governor without the aid of the Council of Ministers and the act of the President amending the J&K Reservation Act through an Ordinance are lock stock and barell unconstituional acts.
Now the most important question that arises is the underlying intent of these unwarranted Acts. The State hardly needed such ‘emergent’ amendments in the first place. It was too late in the day for the otherwise belligerent centre to think about reservations in the State of J&K. The timing of these amendments especially when the State was in war-like situtaion makes the entire exercise suspect. The answer is rather simple. It’s to my mind a concious drill to pave way for a greater consitutional damage in the future. A testing of waters for a calamity that could be presented to us in the future. If the present Acts pass muster then the same mechansim could be used in the near future to amend the Presidential Order of 1954 for abrogating Article 35 A, the final fig leaf of our consitutional autonomy. Its not inconceivable to think that if the present Acts go unchallenged the next time we are under Presidents Rule, the Union can amend the Presidential Order of 1954 using the same present mechanism and by completely trammelling upon the will of the people and by relying on the concurrence of the Governor alone get rid of Article 35 A and to nail the coffin the President can issue an Ordinance amending the local Transfer of Property Act, local State subject laws or any other local Act that enures to our advantage thereby bidding a final adieu to our unique Constitutional Status. The thought and the possibility of it hapening is enough to give one a cold shudder. Constitutional Integrity we must remember can only be preserved, 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 we must remember that a strong but accountable State Goverment is essential for the State. Political onslaught is checked by political means. Lot can be damaged in the periods of vaccum that we invariably face during which fractured Governments are suspended. Its high time we rework our political and legal strategy while we still can.
Until next time.
The author is an Advocate by profession.