Does the Parliament Need Omar Abdullah’s Consent to Repeal Article 370?
This article originally appeared in centreright.in. CRI content has now been subsumed in swarajyamag.com. The views expressed here are personal and do not necessarily reflect those of the editors of swarajyamag.com

Over the past two days, thanks to a combination of irresponsibly mischievous reportage and  Omar Abdullah’s hitherto unknown astounding soothsaying skills coming to the fore (Abdullah’s Bhavishyavaani being that J&K will not be a part of India if Article 370 of the Constitution were to be repealed), social media is rife with speculation on Article 370 and whether the consent of the J&K State Assembly is needed for the abrogation of Article 370 should the Government choose to move in that direction.

This post is an attempt to address the issue legally. To understand the ground implications of the abrogation (“repealment”) of Article 370, please read this earlier post on CRI.

Let’s first take a look at the reviled provision itself:

Article 370: Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything in this Constitution,

(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948 ;

(c) the provisions of Article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause (1) or in the second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification

The specific Clause of Article 370 that is the subject of the current debate is Clause (3) and its Proviso. Following are the points to be noted:

  1. Clause 3 refers to abolition of Article 370 by a mere Presidential notification. It is an “empowering provision”, which means it gives the President of India the power to repeal Article 370 by a mere public notification.
  2. However, the Proviso states that before the President issues such a public notification, the “recommendation of Constituent Assembly of the State referred to in Clause (2) shall be necessary”.

The question that needs to be asked is, does the Proviso mean that the consent of the State Assembly of J&K as it exists today is a mandatory prerequisite to abolition of Article 370 by the President through a notification?

Here’s the interpretation of the Proviso and I will try to keep legalese to the minimum:

Rule 1: One of the cardinal principles of legal interpretation is that every word used in a provision must be given its due and no word must be rendered redundant.

Rule 2: Further, legal instruments/legislations are typically consistent in their choice of words.

Rule 3: Purposive interpretation must be resorted to, if, based on the express words used, the conclusion is hyper-technical and therefore impractical or not plausible.

Rule 4: Each time the Constitution is amended, the Parliament assumes the role of a “Constituent Assembly” since it re-constitutes the Constitution. This applies to J&K’s constitution and its “parliament”/Legislative Assembly as well which is governed by the Constitution of Kashmir, 1957.

Let’s apply these rules to the Proviso to Article 370(3).

  1.  Applying Rule 1, the reference in the Proviso is to the “Constituent Assembly of the State referred to in clause (2)”, and not to merely “Constituent Assembly of the State” or “State Legislature”. Why is this important? This is important because Clause 2 makes a reference to “Constituent Assembly for the purpose of framing the Constitution of the State” i.e. the Assembly as it existed when the Constitution of J&K was being drafted/framed, and not to the State Legislature as it exists today.
  2. Applying Rule 2, the Constitution uses the word “State Legislature”/”Legislature” wherever it makes a reference to the State Assembly. However, in contrast the Proviso to Article 370(3) uses the phrase, “Constituent Assembly of the State referred to in clause (2)”. Therefore, it could be plausibly argued that under the Proviso to Article 370(3), the reference is not to the State Assembly as it exists today, and consequently the President does not need the recommendation of the current Assembly of J&K to repeal Art.370 by a public notification.
  3. Further, the Proviso does not envisage a situation where the President needs to seek the consent of the “Constituent Assembly” after the Constitution of J&K comes into force since there would not exist a “Constituent Assembly”. However, applying Rule 4, after the framing of the Constitution of J&K, the “Constituent Assembly” could again come into being when the State’s constitution is sought to be amended. This calls for application of Rule 3. If the purpose of the Art 370(3) is to abolish article 370 and therefore to put an end to the very existence of the Kashmir’s Constitution, could it be logically and plausibly argued that the “Constituent Assembly” of that State comes alive to repeal/abolish its own Constitution? In other words, does the Proviso require the J&K state assembly to assume the avatar of a Constituent Assembly to abrogate its Constitution? I am not sure this is a plausible or conceivable argument to make given that the language of the Proviso makes a clear and express reference to ““Constituent Assembly for the purpose of framing the Constitution of the State”.

The alternative to breaking our heads on Article 370(3) is to invoke Article 368, which reads as follows:

368. Power of Parliament to amend the Constitution and procedure therefore

(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article

It is evident from a literal reading of Clause 1 of Article 368 that there is no limitation or restriction on the power of the Parliament to constitutionally repeal any provision of the Constitution, which includes Article 370, subject to judicial review. In fact, the safeguards provided for in Article 368(2) do not need the consent of the J& K Legislature. In other words, the Government could invoke Article 368(1) to repeal Article 370 and Shri Abdullah cannot expect the J&K assembly’s consent to be taken.

Therefore, instead of stepping into legal wrangles by invoking Article 370(3), the Government may opt for Article 368 to repeal Article 370. This is not to say that the Government must bulldoze views and go about this issue without thinking through its next steps. After all, nobody wants a reprisal of the hasty and unthinking manner in which Telangana was created. That said, the Government should not and cannot be held hostage to the kind of secessionist threats issued by Shri Abdullah who clearly does not enjoy the mandate of his own people, if the general election results are anything to go by. Bottom line: There can be no compromise on the idea of India.”