The Constitutional Provisions of Article 370
Article 370 of the Constitution is as follows:–
(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 mid the Concurrent List which, in consultations 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 Maharaja’s 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 he 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 PROVISION WAS TEMPORARY
This article contained temporary provisions which ceased to be effective after the Constituent Assembly convened for the purpose of framing the Constitution of the Jammu and Kashmir State had completed its task by framing the Constitution for that State. Reliance was placed on the historical background in which this Article 370 was included in the Constitution to urge that the powers under this article were intended to be conferred only for the limited period until the Constitution of the State was framed, and the President could not resort to them after the Constituent Assembly had completed its work by framing the Constitution of the State. The background of the legislative history to which reference was made, was brought to our notice by learned counsel by drawing our attention to the speech of the Minister Sri N. Gopalaswami Ayyangar when he moved in the Constituent Assembly Clause 306A of the Bill, which now corresponds with Article 370 of the Constitution. It was stated by him that conditions in Kashmir were special and required special treatment The special circumstances, to which reference was made by him were:–
(1) that there had been a war going on within the limits of Jammu and Kashmir State,
(2) that there was a cease-fire agreed to at the beginning of the year and that cease-fire was still on,
(3) that the conditions in the State were still unusual and abnormal and had not settled down;
(4) that part of the State was still in the hands of rebels and enemies;
(5) that our country was entangled with the United Nations in regard to Jammu and Kashmir and it was not possible to say when we would be free from this entanglement;
(6) that the Government of India had committed themselves to the people of Kashmir in certain respects which commitments included an undertaking that an opportunity would be given to the people of the State to decide for themselves whether they would remain with the Republic or wish to go out of it; and
(7) that the will of the people expressed through the Instrument of a Constituent Assembly would determine the Constitution of the State as well as the sphere of Union jurisdiction over the State.
RELATION WITH ARTICLE 35(c)
Article 35(c) of the Constitution, as initially introduced by the Constitution (Application to Jammu and Kashmir) Order, 1954 (C. O. 48) had given protection to any law relating to preventive detention in Jammu and Kashmir against invalidity on the ground of infringement of any of the fundamental rights guaranteed by Part III of the Constitution for a limited period of five years only. This clause, as introduced in 1954, read as follows:
“No law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this Part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of five years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof,”
It was said that the five years mentioned in the clause expired in 1959, and consequently, the Act, which was passed in 1964, did not get immunity from being declared void on the ground of inconsistency with Article 22 of the Constitution. It, however, appears that for the words “five years” in Article 35(c), the words “ten years” were substituted by the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1959 (C. O. 59), which was passed before the expiry of those five years and, subsequently, for the words “ten years” so introduced, the words “fifteen years” were substituted by the Constitution (Application to Jammu and Kashmir) Amendment Order, 1964 (C. O. 69). This modification was also made before the expiry of the period of ten years from the date on which the Constitution (Application to Jammu and Kashmir) Order, 1954 was passed. On these facts, that these two modifications in 1959 and 1964, substituting “ten years” for “five years” and “fifteen years” for “ten years”, were themselves void on the ground that orders making such modifications could not be validly passed by the President under Article 370(1) of the Constitution in the years 1959 and 1964.
In this back ground, Article 370 of the Constitution could only have been intended to remain effective until the Constitution of the State was framed and the will of the people of Jammu and. Kashmir had been expressed and, thereafter, this article must be held to have become ineffective, so that the modifications made by the President in exercise of the powers under this article, subsequent to the enforcement of the Constitution of the State, would :be without any authority of law. The Constitution of the State came into force on 26th January, 1956 and, therefore, the two Orders of 1959 and 1964 passed by the President in purported exercise of the power under Article 370 were void. It was also urged that the provisions of Clause (2) of Article 370 support this view, because it directs that, if the concurrence of the Government of the State is given under paragraph (ii) of Sub-clause (b) of Clause (1) or under the second proviso to Sub-clause (d) of that clause before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, that concurrence has to be placed before such Assembly for such decision as ,it may take thereon. From this, it was sought to be inferred that the power of the President, depending on the concurrence of the. Government of the State, must be exercised before the dissolution of the Constituent Assembly of the State, so that the concurrence could be placed for its decision, and that power must be held to cease to exist after the dissolution of the Constituent Assembly when that course became impossible.
STATUS OF UNDER THE LAW
The article370 continued in force and remained effective even after the Constituent Assembly of the state had passed the Constitution of the State. The most important provision in this connection is that contained in Clause (3) of the article which lays down that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date, as the President may specify by public notification, 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. This clause clearly envisages that the article will continue to be operative and can cease to be operative only if, on the recommendation of the Constituent Assembly of the State, the President makes a direction to that effect. In fact, no such recommendation was made by the Constituent Assembly of the State, nor was any Order made by the President declaring that the article shall cease to be operative. On the contrary, it appears that the Constituent Assembly of the State made a recommendation that the article should be operative with one modification to be incorporated in the Explanation to Clause (1) of the article. This modification in the article was notified by the. President by Ministry of Law Order No. C. O. 44 dated 15th November, . 1952, and kid down that, from the 17th November, 1952, the article was to be operative with substitution of the new Explanation for the old Explanation as it existed at that time. This makes it very clear that the Constituent Assembly of the State did not desire that this article should cease to be operative and, in fact, expressed its agreement to the continued operation of this article by making a recommendation that it should be operative with this modification only.
Further reference may also be made to the proviso added to Article 368 of the Constitution in its application to the State of Jammu and Kashmir, under which an amendment to the Constitution made in accordance with Article 368 is to have no effect in relation to the State of Jammu and Kashmir unless applied by order of the President under Clause (1) of Article 370. The proviso, thus, clearly requires that the powers of the President under Article 370 must be exercised from time to time in order to bring into effect in Jammu and Kashmir amendments made by Parliament in the Constitution in accordance with Article 368. In view of these provisions, it must be held that Article 370 of the Constitution has never ceased to be operative and there can be no challenge on this ground to the validity of the Orders passed by the President in exercise of the powers conferred by this Article.
THE POWER OF PRESIDENT
Under Article 370(1)(d), the power of the President is expressed by laying down that provisions of the Constitution, other than Article (1) and Article 370 which, under Article 370(1)(c), became applicable when the. Constitution came into force, shall apply in relation to the State of Jammu and Kashmir subject to such exceptions and modifications as the President may by order specify. What the President is required to do is to specify the provisions of the Constitution which are to apply to the State of Jammu and Kashmir and, when making such Specification, he is also empowered to specify exceptions and modifications to those provisions. As soon as the President makes such specification, the provisions become applicable to the State with the specified exceptions and modifications: The specification by the President has to be in consultation with the Government of the State if those provisions relate to matters in the Union List and the Concurrent List specified in the Instrument of Accession governing the accession of the State to the Dominion of India as matters with respect to which the Dominion Legislature may make laws for that State. The specification in respect of all other provisions of the Constitution under Sub-clause (d) of Clause (1) of Article 370 has to be with the concurrence of the State Government. Any specification made after such consultation or concurrence has the effect that the provisions of the Constitution specified with the exceptions and modifications become applicable to the State of Jammu and Kashmir. It cannot be held that the nature of the power contained in this provision is such ‘that Section 21 of the General Clauses Act must be held to be totally inapplicable.
In this connection, it may be noted that Article 367 of the Constitution lays down that, unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. This provision made by the Constitution itself in Article 367, thus, specifically applied the provisions of the General Clauses Act to the interpretation of all the articles of the Constitution which include Article 370. Section 21 of the General Clauses Act is as follows :
“Where by any Central Act of Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.”
This provision is clearly a rule of interpretation which has been made applicable to the Constitution in the same manner as it applies to any Central Act or Regulation. On the face of it, the submission that Section 21 cannot be applied to the interpretation of the Constitution will lead to anomalies which can only be avoided by holding that the rule laid down in this section is fully applicable to all the provisions of the Constitution. As an example, under Article 77(3), the President, and, under Article 166(3) the Governor of a State are empowered to make rules for the more convenient transaction of the business of the Government of India or the Government of the State, as the case may be, and for the allocation among Ministers of the said business. If, for the interpretation of these provisions, Section 21 of the General Clauses Act is not applied, the result would be that the rules once made by the President or a Governor would become inflexible and the allocation of the business among the Ministers would for ever remain as laid down in the first rules. Clearly, the power of amending these rules from time to time to suit changing situations must be held to exist and that power can only be found in these articles by applying Section 21 of the General Clauses Act. There are other similar rule-making powers, such as the power of making service rules under Article 309 of the Constitution. That power must also be exercisable from time to time and must include within it the power to add to, amend, vary or rescind any of those rules. The submission that Section 21 of the General Clauses Act cannot be held to be applicable for interpretation of the Constitution must, therefore, be rejected. It appears to us that there is nothing in Article 370 which would exclude the applicability of this section when interpreting the power granted by that article.
HISTORICAL CONNECTION
It was because of the special situation existing in Jammu and Kashmir that the Constituent Assembly framing the Constitution decided that the Constitution should not become applicable to Jammu and Kashmir under Article 394, under which it came into effect in the rest of India, and preferred to confer on the President the power to apply the various provisions of the Constitution with exceptions and modifications. It was envisaged that the President would have to take into account the situation existing in the State when applying a provision of the Constitution and such situations could arise from time to time. There was clearly the possibility that, when applying a particular provision, the situation might demand an exception or modification of the provision applied; but subsequent changes in the situation might justify the rescinding of those modifications or exceptions. This could only be brought about by conferring on the President the power of making orders from time to time under Article 370 and this power must, therefore, be held to have been conferred on him by applying the provisions of Section 21 of the General Clauses Act for the interpretation of the Constitution.
CONSTRUCTION OF ARTICLE 370
Article 368 of the Constitution having been applied to Jammu and Kashmir with a proviso added to ft, there now exists a provision relating to amendment of the Constitution as applied to Jammu and Kashmir under this article and, consequently, while such special provision for this purpose exists, we should interpret Article 370 as being no longer applicable for amending or modifying the provisions of the Constitution applied to that State. This argument, in our opinion, is based on a wrong premise. Article 368 has been applied to Jammu and Kashmir primarily with the object that amendments made by the Parliament in the Constitution of India as applicable in the whole of the country should also take effect in the State of Jammu and Kashmir. The proviso, when applying this article, serves the purpose that those amendments made should be made applicable to the State of Jammu and Kashmir only with the concurrence of the State Government and, after such concurrence is available these amendments should take effect when an order is made under Article 370 of the Constitution. Thus, Article 368 is not primarily intended for amending the Constitution as applicable in Jammu and Kashmir, but is for the purpose of carrying the amendments made in the Constitution for the rest of India into the Constitution as applied in the State of Jammu and Kashmir. Even, in this process, the powers of the President under Article 370 have to be exercised and, consequently, it cannot be held that the applicability of this article would necessarily curtail the power of the President under Article 370.
The power of making modifications and exceptions in the orders made under Article 370(1)(d) should at least be limited to making minor alterations and should not cover the power to practically abrogate an article of the Constitution applied in that State. That submission is clearly without force. The challenge to the validity of Article 35(c) introduced in the Constitution as applied to Jammu and Kashmir on this ground was repelled by this Court in P.L. Lakhanpal Vs. The State of Jammu and Kashmir .
Subsequently, the scope of the powers of making exceptions and modifications was examined in greater details by this Court in Puranlal Lakhanpal Vs. The President of India and Others, Dealing with the scope of the word “modification” as used in Article 370(1), the Court held:–
“But, in the present case, we have to find out the meaning of the word “modification” used in Article 370(1) in the context of the Constitution. As we have said already, the object behind enacting Article 370(1) was to recognise the special position of the State of Jammu and Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the Constitution would, not apply to that State. If, therefore, the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir, it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If he could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word “modification” in Article 370(1), the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and Kashmir.”
Proceeding further, and after discussing the meaning of the word “modify”, the Court held:
“Thus, in law, the word “modify” may just mean “vary” i. e., amend; and when Article 370(1) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify, it means that he may vary (i.e., amend) the provisions of the Constitution in its application to the State of Jammu and Kashmir. We are, therefore, of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word “modification” used in Article 370(1) and in that sense it includes an amendment. There is no reason to limit the word “modifications” as used in Article 370(1) only to such modifications as do not make any “radical transformation”.
The modifications made in Article 35(c) by the Constitution (Application to Jammu and Kashmir) Orders of 1959 and 1964 had the effect of abridging the fundamental right of the citizens of Kashmir under Article 22 and other articles contained in Part III after they had already been applied to the State of Jammu and Kashmir and an order of the President under Article 370 being in the nature of law, it would be void under Article 13 of the Constitution. Article 35(c) as originally introduced in the Constitution as applied to Jammu and Kashmir laid down that no law with respect to preventive detention made by the Legislature of that State could be declared void on the ground of inconsistency with any of the provisions of Part III, with the qualification that such a law to the extent of the inconsistency was to cease to have effect after a period of five years. This means that, under Clause (c) of Article 55, immunity was granted to the preventive laws made by the State Legislature completely, though the life of the inconsistent provisions was limited to a period of five years. The extension of that life from five to ten years and ten to fifteen years cannot, in these circumstances, be held to be an abridgement of any fundamental right, as the fundamental rights were already made inapplicable to the preventive detention law. On the other hand, if the substance of this provision is examined, the proper interpretation would be to hold that, as a result of Article 35(c), the applicability of the provisions of Part III for the purpose of judging the validity of a law relating to preventive detention made by the State Legislature was postponed for a period of five years, during which the law could not be declared void. As already stated Article 370(1)(d), in terms, provides for the application of the provisions of the Constitution other than Articles 1 and 370 in relation to Jammu and Kashmir with such exceptions and modifications as President may by order specify. It was not disputed that the President’s Order of 1954, by which immunity for a period of five years was given to the State’s preventive detention law from challenge on the ground of its being inconsistent with Part III of the Constitution was validly made under and in conformity with Clause (d) of Article 370(1).
We may say that the power to modify in Clause (d) also includes the power to subsequently vary, alter, add to or rescind such an order by reason of the applicability of the rule of interpretation laid down in Section 21 of the General Clauses Act. If the order of 1954 is not invalid on the ground of infringement or abridgement of fundamental rights under Part III, it is difficult to appreciate how extension of period of immunity made by subsequent amendments can be said to be invalid as constituting an infringement or abridgement of any of the provisions of Part III. The object of the subsequent Orders of 1959 and 1964 was to extend the period of protection to the preventive detention law and not to infringe or abridge the fundamental rights, though the result of the extension is that a detenu cannot, during the period of protection, challenge the law on the ground of its being inconsistent with Article 22. Such extension is justified prima facie by the exceptional state of affairs which continue to exist as before.
The provision made in Article 35(c) has the effect that the validity of the Act cannot be challenged on the ground that any of the provisions of the Act are inconsistent with Article 22 of the Constitution.
P.L. Lakhanpal Vs. The State of Jammu and Kashmir, AIR 1956 SC 197 : (1956) CriLJ 421 : (1955) 2 SCR 1101
Puranlal Lakhanpal Vs. The President of India and Others, AIR 1961 SC 1519 : (1962) 1 SCR 688
