Article-368 of Constitution of India is for Amending Constitution & Procedure therefor using Constituent Power

𝐎𝐩𝐞𝐫𝐚𝐭𝐢𝐧𝐠 𝐀𝐫𝐭-𝟑𝟕𝟎(𝟑) 𝐨𝐧 𝐑𝐞𝐜𝐨𝐦𝐦𝐞𝐧𝐝𝐚𝐭𝐢𝐨𝐧𝐬 𝐨𝐟 𝐏𝐚𝐫𝐥𝐢𝐚𝐦𝐞𝐧𝐭 𝐢𝐬 𝐰𝐢𝐭𝐡𝐢𝐧 𝐏𝐫𝐨𝐯𝐢𝐬𝐢𝐨𝐧𝐬 𝐨𝐟 𝐂𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧 𝐨𝐟 𝐈𝐧𝐝𝐢𝐚
𝐈𝐬𝐬𝐮𝐢𝐧𝐠 𝐂.𝐎 𝟐𝟕𝟐 & 𝐂.𝐎 𝟐𝟕𝟑 𝐮𝐬𝐢𝐧𝐠 𝐀𝐫𝐭-𝟑𝟕𝟎 𝐢𝐧 𝐀𝐮𝐠𝐮𝐬𝐭 𝟐𝟎𝟏𝟗 𝐢𝐬 𝐮𝐧𝐝𝐞𝐫 𝐉𝐮𝐝𝐢𝐜𝐢𝐚𝐥 𝐫𝐞𝐯𝐢𝐞𝐰 𝐟𝐨𝐫 𝐏𝐫𝐨𝐜𝐞𝐝𝐮𝐫𝐞 𝐀𝐝𝐨𝐩𝐭𝐞𝐝
𝐌𝐨𝐝𝐢𝐟𝐲𝐢𝐧𝐠 /𝐑𝐞𝐩𝐞𝐚𝐥𝐢𝐧𝐠 𝐓𝐞𝐦𝐩𝐨𝐫𝐚𝐫𝐲 𝐀𝐫𝐭-𝟑𝟕𝟎 𝐢𝐬 𝐬𝐮𝐫𝐞𝐥𝐲 𝐧𝐨𝐭 𝐯𝐢𝐨𝐥𝐚𝐭𝐢𝐧𝐠 𝐛𝐚𝐬𝐢𝐜 𝐬𝐭𝐫𝐮𝐜𝐭𝐮𝐫𝐞 𝐨𝐟 𝐂𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐨𝐧 𝐨𝐟 𝐈𝐧𝐝𝐢𝐚
𝐀𝐫𝐭-𝟏 𝐨𝐟 𝐂𝐎𝐈 𝐰𝐚𝐬 𝐧𝐨𝐭 𝐚𝐩𝐩𝐥𝐢𝐞𝐝 𝐭𝐨 ‘𝐉&𝐊’ 𝐭𝐡𝐫𝐨𝐮𝐠𝐡 𝐀𝐫𝐭-𝟑𝟕𝟎 𝐛𝐮𝐭 𝐢𝐬 𝐚𝐩𝐩𝐥𝐢𝐞𝐝 𝐭𝐨 𝐉&𝐊 𝐚𝐥𝐨𝐧𝐠 𝐰𝐢𝐭𝐡 𝐀𝐫𝐭-𝟑𝟕𝟎

DAYA SAGAR

Art-368 of Constitution of India (Power of Parliament to amend the Constitution and Procedure therefor reads among others 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 and an amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill. From the text of Art-368 it is evident that the power to amend the Constitution is ‘constituent power’ i.e.when ever Parliament amends the constituent it is in a way also performing the function of a ‘Constituent Assembly’ and the same should also be true for the Legislative Assembly of a state/UT where ever applicable. Hence it would not be unconstitutional in case the recommendations of the ‘Constituent Assembly’ of J&K for the purposes of Art-370(3) are made by Legislative Assembly of the State where the job in question is amendment / modification/repeal of the Article 370 and that too when it involves no violation of the basic principles enshrined in COI since Article-370 also empowers the Parliament to even amend the procedure for making amendment. As regards amending Art-370 of COI no immunity is provided to it w.r.t to Article 368 (amendment of Constitution of India ) and more particularly after the President made Constitution ( Application ) Order 2019 vide C.O 272 on 05-08-2019 Article 370 could also be modified/ amended/ abrogated as per Constitutional provisions using Art-368 also without any limitations by Parliament through a regular bill. UPTO 2019 text of Art-370 had not been amended/ abrogated / modified except for some indirect references well within constitutional limits..
If anybody suggests that procedures for amending the Constitution of India can never be modified / amended since constituent assembly is not there it is not acceptable when provision for amending constitution and procedure therefor is already laid in COI. So, if needed that course too could be used where ever suitable. What matters is the requirement and time of requirement. Whether the Legislature/ Parliament shall /will/ should go/ should have gone for modifying/ amending/ abrogating Article 370 is a separate question, and that is not under review.
It could also be opined by some that the mention of ‘obtaining recommendations of the Constituent Assembly’ in Art 370(3), a nonexistent body on date that has technically lost significance so the President cannot perform the needed functions for modifying or repealing Article 370 but even they cannot deny that Parliament / Legislative Assembly do exist as Shadow of Constituent Assembly since Constituent powers are enshrined in them for performing functions of amending even constitution, ofcourse without overstretching the basic spirits / basic structure of the Constitution. And the basic structure / spirits underlying COI do reflect from what has been said in the text of Art-370 itself as regards any action that is made by legislature, if required, w.r.t to Art-370(3) and in the Preamble of J&K Constitution.
Constitution ( Application to Jammu and Kashmir ) Order 1954 C.O 48 Dated 14-05-1954 could also be modified / amended with the concurrence of state government to remove only Art- 35A , item (4j) but now on 05-06-2019 Constitution ( Application to Jammu and Kashmir) order 2019 has been issued i.e C.O 272 of 05-08-2019 to supersede Constitution ( Application to Jammu and Kashmir ) Order 1954 C.O 48 Dated 14-05-1954 itself with the concurrence of state government ( no recommendations of Constituent Assembly were needed here ) where in even additionally Item(15)- PART XX clause (2) relating to Article 368 which said , the following proviso shall be added, namely:-“Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of article 370” too has gone .
When there is President Rule under Art-356 of COI Governor becomes State and Parliament takes function of Legislative Assembly ). { Art-356 : 356. Provisions in case of failure of constitutional machinery in States.-(1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation- (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament}.
Hence Parliament could use either of the options i.e Art-368 and Art-370(3) and option of using recommendations of the Assembly/ Parliament has been well used with the provisions of constitutional of India to operate upon Art-370 vide C.O 373 0f 06-08-2019.
Clause (4) of Art-368 says ” No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground. And clause-(5) says (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.] Vo doubt Clause-4 has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others AIR 1980 SC 1789. Any actions by parliament are open for review by Judiciary.
Observations made by experts {like Interlocutors for J&K (2010) in their report 2011} that getting rid of Article 370 would cast a shadow on Accession do not test to real logics since the authors of Constitution of India have named Article 370 as a Temporary Provision. Article (1) of Constitution of India has no reference of Article 370 while defining the territories/ States of India. Section- 3 of J&K Constitution – Relationship of the State with the Union of India – too lays down that The State of Jammu and Kashmir is and shall be an integral part of the Union of India.
In common interest there is no purpose in going into the proceedings and discussions held during process of framing the Constitution (unless it is very-very necessary). Lets us go only with what the orders/ acts/ laws say and not enter into debates by quoting the expressions of individuals. Go by what has been finally written and laid as order/ Law/Constitutional provision. Otherwise arguments and debates would never end. The separatists and even some mainstream political parties have all these years seized opportunities for posting Art-370 as a distancing sign/ symbol of separatist ideologies whereas constitutionally it is not so. It is more for this distorted/ ‘assumed face’ of Article 370 that need was more for its modification/ repeal.
And ofcourse under the prevailing circumstances even when the operations as regards Art-370 modification/ repeal are constitutionally valid , still the ‘related issues will have to be handled with a trident approach i.e constitutionally/ legally , politically ( carrying the political parties out of the web of Kashmiri wave lengths ) and socially (reaching the innocent common man with new definitions/ descriptions of Article 370).
(the author is Sr Journalist & leading analyst J&K affairs [email protected]).