In the aftermath of the developments over Jammu and Kashmir, Indian constitutionalism has been left with a fascinating set of questions.
The Indian Constitution contains a model of asymmetric federalism, where a number of states are treated differently with respect to others. Article 370 limits “the power of Parliament to make laws” for the State of Jammu and Kashmir. For decades, the provision has been the source of much contestation, both with regard to its existence and with regard to its interpretation (for example, debates have ensued over what “exceptions and modifications” can apply to the state).
Clause (3) of Article 370 gives the President the power to “declare that this article shall cease to be operative”, with the important proviso that “the recommendation of the Constituent Assembly of the State … shall be necessary before the President issues such a notification”. This raises an obvious puzzle.
Making Article 370(3) inoperative
The Constituent Assembly of Jammu and Kashmir no longer exists. The Constituent Assembly gave us a Constitution (the State of Jammu and Kashmir is the only state in India with its own constitutional text) that came into force on 26 January 1957. After that date, there is no Constituent Assembly of the State of Jammu and Kashmir. What does that mean for the purposes of Article 370(3)?
The Presidential notification issued on 5 August 2019 addresses this issue by doing away with the question. It resolves the interpretive ambiguity in Article 370(3) by inserting a new provision in Article 367 of the Constitution that declares that “the expression ‘Constituent Assembly of the State…’ shall read ‘Legislative Assembly of the State’”. The upshot of this is that Article 370(3) can now be made inoperative, as it has, not by a “recommendation of the Constituent Assembly of the State”, but instead by a recommendation of the state legislature. And, given that the State of Jammu and Kashmir presently has no state legislature, this role has been performed by the Governor.
As Gautam Bhatia has noted, there are two tricky issues here. The first is that Article 370(1) begins with a non-obstante clause that declares that Article 1 of the Constitution (relating to the name and territory of the Union of India) and Article 370 apply to the State of Jammu and Kashmir, raising the question of whether this can be changed via a presidential order. The problem here, of course, is that Article 370(3) also begins with a non-obstante clause, placing us in a bind.
The second issue, of course, is that the act has been performed by the Governor rather than the state legislature, inviting debate over whether the Governor can indeed perform such a foundational decision, one that alters a state without the consent of representatives from that state (as the Governor is an appointee of the central government).
Two further legal issues
Both these are important matters, but there are two further legal issues that seem to arise. The first is that Article 367 of the Constitution has been amended (as we noted, to equate “Constituent Assembly” with “Legislative Assembly”) without a constitutional amendment. Ironically enough, rather than anything relating to either Article 370 or the bifurcation of the State of Jammu and Kashmir, it is this move that really seems to call the Presidential notification into question and appears to be the cardinal legal flaw. How can Article 367 of the Constitution be amended to include a new provision without a constitutional amendment?
The second legal issue is the substance of the amendment to Article 367, namely the equating of a constituent assembly with a state legislature. Legal fictions are used widely in the law, but the trouble here is that a constituent assembly exercises constituent power – it is an expression of sovereign authority – whereas a state legislature exercises representative power, where the people have sovereign authority. The answer cannot be Article 370(1)(d) that allows Presidential orders to determine the application of provisions of the Constitution to the State of Jammu and Kashmir, because the amendment to Article 367 is not about the application of any constitutional provision to the state. It is an amendment to a provision in Article 370.
Sovereign vs representative authority
The equation of a constituent assembly with a state legislature blurs both matters, a troublesome fact not least because Indian constitutionalism has long recognised the distinction between sovereign authority and representative authority.
Indeed, it is precisely this distinction that is at the heart of India’s basic structure doctrine that prevents certain constitutional amendments on the ground that Parliament, which exercises representative authority, is limited and cannot create a new constitution and thereby exercise sovereign authority.
To accept the equating of a constituent assembly with a state legislature is to do away with the principle on which the basic structure doctrine, and arguably constitutionalism in general, rests.
In addressing these questions, the Supreme Court, before whom these issues will ultimately be played out, will not only set the ground rules on federalism and states’ reorganisation, but will deliver perhaps its most significant verdict on constituent power and amendment rules.
Madhav Khosla is a Junior Fellow at the Harvard Society of Fellows. His book, India’s Founding Moment: The Constitution of a Most Surprising Democracy, is forthcoming by Harvard University Press. Views are personal.