Operating Art-370(3) on recommendations of Parliament is within provisions of Constitution of India

DAYA SAGAR

Referring to Art-370(3) the other objection advanced by some against validity of C.O 273 of August 6, 2019 ( a Presidential notification ) which notifies modification / change in the contents/ text of Article -370 of constitution of India is that since there is no Constituent Assembly of J&K available in terms of proviso to Art 370(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 commendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification”; so the recommendations made by Parliament to President for issuing the said notification are constitutionally not valid. Although objection is not fair and valid, but still we have to wait for apex court verdict. But since such otherwise thinking do affect social environment, some opinions will have to be pinned to limit controversies and myths.
The J&K Constituent Assembly was assigned the job of framing J&K Constitution as state of the Union of India in 1951 and was well aware of the Clause (3) of Article 370. Therefore, it was for the Constituent Assembly (that is said to have ultimately dispersed after writing and adopting Constitution of J&K in 1956 ( 16 November ) to make some recommendations to the President with regard to status of Article 370 since it was a Temporary Provision w.r.t. to J&K. But the Constituent Assembly did not do so. Do, those who contest on this ground mean to say that there is no way out for getting the job left half done in 1956 by the Constituent Assembly of J&K so as to complete it after 1956 ? No, sir it is not fair. Parliament of India or the President of India cannot be left helpless only because a designated body / institution which is not existing in name after 1956 did not complete ” its” job. Ofcourse this day ‘elders’ are not there to clear doubts that some may carry but no one has any right to question their wisdom. The ‘professors’ of otherwise doctrines must not overlook the fact that amendments to constitution after 1949 are made using constituent powers by the parliament and there is no dead end.
Drafting and writing a constitution was surely a very hard (particularly for those who had no much independent experience of the administrative and constitutional affair handling), sensitive and complex assignment and there could be some related issues/ needs that could be sensed/ realised after the text is put to actual use and requirements are surely to emerge for making additions and deletions, which is why is why in constitution of India there is Art-368 where in are inherited constituent powers for amendment of Constitution and Procedure therefore. Similarly J&K Constitution has Section-147 for amendment of constitution; and this constituent power is used by Parliament / Legislative Assembly whenever there is need to amend the constitution ( of course without disturbing the basic structure of the constitution). So any action that would be legitimately needed with time could be taken by Parliament / Legislative Assembly using constituent powers ,as if it was done by Constituent Assembly . Process had never to stop. So shadows of Constituent assembly do exist in Parliament / Legislature who operate upon the Articles enshrined in constitution for amending the constitution which is no less than ‘writing’ the constitution except that while amending the constitution the basic spirits that had formed the basis for framing a Constitution cannot be violated by the legislators.
Legislatures have all these years performed many acts of in a way rewriting the Constitution through amendments without disturbing basic structure /violating the basic spirits underlying the Constitution. Many Constitution ( Application to J&K) orders ( C.Os76-77,83-94, 108,122,148 etc ) have been made by President of India after 1957 with the concurrence of State Government when there was no Constituent Assembly and the State Legislative Assembly has performed where ever needed. In August 2019 J&K was under president rule where LG / 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; …} .So since Legislative Assembly can take over the role of constituent assembly and J&K was under President rule with Parliament taking over the functions of Legislative Assembly in terms of Art-356(b) the recommendations for operating upon Article -370 were made to President of Republic of India by Parliament of India on .So, recommendations made by Parliament on behalf of ‘J&K Assembly in 2019 enabling President of India to issue Notification 6 August 2019 G.S.R . 562(E) declaring for general information under Article 370(3) of the Constitution C.O 273 that as from the 6th August, 2019, all clauses of the said article 370 shall cease to be operative except what had been mentioned in revised text is not against the basic structure of the Constitution since Article 370 in principle has been named as Temporary provision subject to modifications/ repeal. Though the ‘locked’ opinions do not stand to logics, but still to ensure , as far as possible, that no any opinion of meaningful subjects remains adequately not addressed to satisfaction worth dismantling any conflicting views that could otherwise take the innocent common people even under a bit of influence of the wrong understandings cultivated around them, it will be of some relevance to even discuss history of convening the Constituent Assembly, performing constituent assembly functions and performance of Legislative functions in J&K upto 1957. A proclamation ( Jammu and Kashmir Constitution (Amendment) Act, 2008 (Samvat) /1951 AD ) issued by Yuvraj (Regent ) Karan Singh’s had in 1951 named the then Praja Sabha/ Constituent Assembly/ Legislative Assembly to be same as far as legislature/ legislative function was concerned. ” Therefore ‘Constituent assembly ‘ is still there in the form of Legislative Assembly of J&K. Hence if still required the J&K Legislature can perform duty for completing the job left undone by the Constituent Assembly as regards making recommendations as and when need arises. Yuvraj Karan Singh, the then Sadar-e Riyasat too addressed the then C. Assembly of J&K as Legislative Assembly in his order of-1953 appointing Bakshi Ghulam Mohd as Prime Minister of J&K which said ” Will you, therefore, make it convenient to meet me immediately so that we might discuss the formation and composition of the new Cabinet. I need hardly impress the continuance in office of the new Cabinet will depend upon its securing a vote of confidence from the Legislative Assembly during its coming session.”
Similarly Ministry of Law, GOI, Order No. C.O. 44, dated the 15 November, 1952 too reads as under : “In exercise of the powers conferred by this Article the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that, as from the 17 day of November, 1952, the said Art-370 shall be operative with the modification that for the Explanation in clause (1) thereof, the following Explanation is substituted, namely:- “Explanation.-For the purposes of this Article, the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the *Sadar-E-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.” So, the function of Legislative Assembly to elect first Sadar-E-Riyasat was performed by ‘Constituent Assembly’ and hence why cannot if still needed function of the Constituent Assembly be done by Legislative Assembly which also has constituent power in Article 147 of J&K Constitution?
J&K Constituent Assembly was also named as the Legislative Assembly under the Constitution of J&K 1996 amended in 1951 (2008 Samvat). So, the Legislative Assembly can perform the role of constituent assembly in case need arises in relation to Art 370 (3) and that has been there before C.O.273 notification was issued on August 6, 2019 as regards Art-370 of COI. From the text of Art-368 it is evident that the power to amend the Constitution is ‘constituent power’ i.e. Whenever 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 where ever applicable. No Constituent Assembly has to stay permanently ,so using the term Constituent Assembly here otherwise indicates that the Art-370 had to stay for a shorter period. Hence it would not be unconstitutional in case the recommendations of ‘Constituent Assembly’ of J&K for purposes of Art-370(3) purpose are made by Legislative Assembly of State where job in question is / modification/repeal of the Article 370 & that too when it involves no violation of the basic structure of COI.

(The author is Sr Journalist & leading analyst J&K affairs [email protected]).