When the Hindu Maharajah of Kashmir (a Muslim dominant princely state) decided to accede to India it was recognized that Kashmir would have its own Constituent Assembly and its own constitution. The problem remained for India that the Instrument of Accession alone did not address the issue of the British (who ruled India till 1947) wanting a plebiscite in Jammu and Kashmir to determine the will of the people on whether they wished to join India or Pakistan. The constituent assembly in a sense gave India the legal standing to argue that by ratifying the instrument of accession the Jammu and Kashmir Constituent Assembly had removed the need for a plebiscite. So far so good; however, the Hindu Maharajah knew of the prevalent view amongst the majority Muslim population of Kashmir that the resulting accession would result in a massive migration of Indian based Hindus into Kashmir.
Thus a form of protection was sought from India to give Kashmir a special status (perhaps more so that it would be the only 'state' in India with a Muslim majority). In consequence Article 370 was enacted which gave India full authority on defense and foreign affairs, but in return recognized that Jammu and Kashmir could have its own constitution and, most importantly, guaranteed special status to Kashmir which would prevent Indians (not only Hindus) who were not domiciled Kashmiris from buying land and property in Jammu and Kashmir.
Now lets deal with the provisions of the now infamous Article 370 itself.
Indeed the Article as a whole was intended to be a temporary measure and hence was included in the section of Temporary provisions of the Indian constitution as it was envisaged that at sometime in the future the Article would be amended or removed. However, the abrogation or removal of the article in its entirety could only be done on recommendation of the Jammu and Kashmir Constituent Assembly (Article 370 (1) (d).
The Article in 370 (1)(d) states that other provisions of the Indian constitution can be made applicable to J&K with such modifications being made by a presidential order. However, such an order must have the concurrence of the J&K government and is limited to the extent of an applicability of a provision of the Indian constitution. However, to completely make Article 370 inoperative the President of India must have the recommendation of the J&K Constituent Assembly (Art 370 (1) (d).
Indeed since the Article was incorporated into the Indian constitution many modifications have been implemented with the consent of the J&K government of the time, the most notable being in 1957 and 1964. Because Kashmir was the only princely state that chose to have its own constituent assembly (all other Princely states accepted the Indian Constitution) the understanding of having this special status and right was the genesis of the Article 370.
The Constituent Assembly of J&K in 1957 dissolved itself without making any recommendation for an amendment or abrogation to Article 370. In a legal sense what the Constituent Assembly was saying that by dissolving itself it carves out a permanence to Article 370 as once dissolved there is no Assembly to recommend the abrogation of Article 370. It is interesting to note that the Indian Supreme Court has ruled numerous times that Article 370 is now a permanent part of the Indian Constitution as the only assembly that could recommend its abrogation dissolved itself without recommending its abrogation or offering an alternate mechanism.
How does the Presidential order of the Modi government violate the legal principles of the Article and the process laid out.
1. While Article 370(1)(d) allows Presidential orders to be issued to modify Article 370 (not scrap it) such modification must be recommended by the Jammu and Kashmir state government. Since J&K is currently under Presidential rule (and therefore no state elected government) the Modi government did not think it necessary to seek such a recommendation for modification.
2. Since there is a major problem that the Constituent Assembly of J&K does not exist, having dissolved itself in 1957, the Modi government has amended Article 367 of the Indian Constitution. This article refers to interpretations and definitions and a new sub clause 367(4)(d) has been inserted which says that words such as "Constituent Assembly" in Article 370(3) must 'read as Legislative Assembly of the State". Since the Presidential power does not exist to change Article 370(3) which defines the Constituent Assembly (not the government of J&K) only to recommend abrogation of Article 370, by changing the definition of the assembly the Modi government paves the way at sometime in the future to have the Legislative Assembly of J&K recommend the abrogation of Article 370.
3.Since there is no legislative assembly in J&K and the state is under Presidential rule the newly amended Article 367 applied to Article 370(3) cannot be used. Thus the Modi government decided to take the matter to the Indian Parliament and recommend the changes through the bill the majority BJP party got passed through both houses of Parliament. While political supporters of Modi and the BJP will argue in the absence of the legislative assembly of J&K and the state being under Presidential rule the Indian Parliament has the authority to pass such a bill. However, legally this is walking on thin ice as there is no provision in the Indian constitution to do this even with a Union State fully integrated into India.
The legal pitfalls of this political chicanery are plentiful, but the question remains if this matter will yet again end up in the Indian Supreme Court. Below are some glaring issues that will be put to test.
A. By modifying Article 367 and redefining Constituent Assembly as "Legislative State Assembly" there is a contradiction now in the Indian Constitution as Article 370(3) remains with the words Constituent Assembly, while Article 367 (4) (the new sub clause) calls it the Legislative State Assembly. Why has this happened? Because the President does not have the power to modify Article 370(3) and it would be clear that the change to Article 367 has been done to let the President do something indirectly which he could not do directly.
The basic structure of the Constitution does not allow the President to use his constitutional powers accorded to him to do an act which the constitution never intended for him to do. The Supreme Court in India has ruled on this doctrine a number of times and specifically on the issue of Article 370.
B. The amendment to Article 367 with inserting a sub clause violates a basic principle of constitutional law. An interpretational provision of a constitution cannot over ride the effect of an article of the constitution. In other words by simply defining a word differently does not mean that effect of the provision of the articles of the constitution have changed.
C. The fact that since 1957, when the Constituent Assembly of Jammu and Kashmir dissolved itself no subsequent Legislative State Assembly of J&K ever raised the issue of enacting new laws within J&K allowing it the power to recommend the abrogation of Article 370 clearly shows much like its predecessor there was always the intent of the J&K legislative personalities to make Article 370 a permanent feature of their legal link with India.
On an international level there is a larger argument that in having different accords over Kashmir with Pakistan, India recognizes that its a disputed territory. However insofar as the internal legal position of the Modi move is concerned there is little doubt that the political agenda of integration has ignored the legal reality related to Jammu and Kashmir. Eventually this might well end up in the Supreme Court of India, however it remains to be seen if the lands highest court can reverse the decision of the Modi government.
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