Nearly four years after the effective abrogation of Article 370 of the Indian Constitution, which guaranteed the special constitutional status to the erstwhile state of Jammu and Kashmir (J&K), on 5 August 2019, the petitions challenging its constitutional validity are yet to be listed for hearing by the Supreme Court of India. However, an interview of the then Governor of the state Satyapal Malik by journalist Karan Thapar released by The Wire on 14 April has renewed the debate on the legality of the abrogation, among other things.
Malik made some important revelations on the abrogation, particularly in respect of the assent that he has rendered to the Constitution (Application to Jammu and Kashmir) Order, 2019 which superseded all the previous orders issued under Article 370 (the Article) ensuing in the abrogation of the Article itself. Needless to say, J&K was under the President’s rule at the time which is why the Governor’s assent to the President’s Constitution Application Order. According to Malik, papers were simply sent to him on the night of 4 August to have them approved by 11 AM the next morning (5 August). He further added that since the leadership in Delhi had made up their mind on the abrogation, he was merely informed that the papers needed his signature and that he obliged.
The Governor as an Agent of the Centre
While Malik has come clean on what actually went into the effective abrogation of Article 370, interestingly, he does not seem to have any problem with the abrogation per se and the prior assent he rendered to the presidential order of 2019 abrogating the Article. That said, it becomes imperative to address whether he, as the Governor of the state, was qualified in law to give assent for the presidential order which abrogated the Article.
A plain reading of the text of Article 370 clearly establishes that it was not within the competence of the Governor of the state to make a recommendation for the abrogation of the Article. Clause 3 of Article 370 unambiguously states that a recommendation of the Constituent Assembly of the state is required for revocation/abrogation of the Article. This means even the legislative assembly of the state couldn’t have made such a recommendation, let alone the Governor.
A basic principle of gubernatorial powers in India is that a Governor of a state is an agent of the centre. The Governor doesn’t represent the ‘will of the people’ of the state or the state generally. The Governor, in the absence of an elected government, can merely ‘exercise’ ‘administrative powers’ for the day-to-day governance of the state.
However, a Governor can’t, by any stretch of the imagination, ‘express’ ‘views/opinions’ on behalf of the people of a state which is legally and politically the domain of the elected representatives (legislative assembly). But wait! As argued above, Article 370, in its clause 3, puts the bar high in terms of the emphasis it lays on the representation of the people of the state for any kind of alteration of the Article as it states a recommendation of the ‘Constituent Assembly’ is necessary for revocation/abrogation of the Article.
Alteration of the Phraseology of Article 370?
It’s worthwhile to mention here that the central government has completely overlooked the fact that Article 370 merely codified the terms of the Instrument of Accession which the then ruler of the state, Maharaja Hari Singh, signed with the Dominion of India in 1947. I have argued elsewhere that Article 370 was a pact, no less than a treaty, between two sovereign units which is why the high bar of the requirement of a recommendation of the Constituent Assembly of the state for its abrogation.
By this logic, any unilateral alteration by one of the parties to the pact would fly in the face of the principle of pacta sunt servanda (agreements/treaties are binding in good faith) - the cardinal rule that governs contractual obligations and is now part of international law. This together with the fact that the Constituent Assembly of the state was dissolved on 26 January 1956, one can safely argue that Article 370 had acquired a permanent character. The same was also echoed by the Supreme Court of India from time to time and lends credence to the questions of legality and political morality on the Governor’s assent for the abrogation of the Article.
But how did the central government justify the procedure it used to abrogate the Article? Was it within the power of the President to alter Article 370 by taking the route of Article 367 which is what the Constitution Application Order of 2019 essentially did? Can a reference to ‘Constituent Assembly of the state’ be changed to mean ‘legislative assembly of the state’, and the latter to the ‘Governor’ of the state?
Such a sweeping alteration of the phraseology of Article 370 by amending Article 367 raises more questions than it addresses. Even an undergraduate student of law can see the blatant unconstitutionality here for at least two reasons:
One, the central government by amending Article 367 to justify the revocation of Article 370 has done indirectly what it could not do directly. This constitutes a colourable exercise of power which has been time and again frowned upon by the Supreme Court. Two, the amendment to Article 367 and the consequent abrogation of Article 370 is both politically and constitutionally flawed as it essentially reduces the ‘will of the people’ of the erstwhile state of J&K to nullity.
Whether the Supreme Court of India will address the questions of such abuse of the constitutional process and rule of law, when it finally hears the petitions, remains to be seen.
(Burhan Majid is a doctoral fellow at NALSAR University of Law, Hyderabad.This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)