Ed Note – As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This is part of a series of posts discussing the public law themed research articles featured in Issue 2 of the 2020 Volume of the Indian Law Review. You can access all the posts in this discussion here. In this piece, Zaid Deva introduces the arguments he makes in his research article titled “Basic without Structure?: the Presidential Order of 1954 and the Indo-Jammu & Kashmir Constitutional Relationship” that has been published in Issue 2 of the 2020 Volume of the Indian Law Review.
On August 5 2019, the Indian union superseded the Presidential Order of 1954 (“Basic Order”) i.e. the Indian constitution as applicable to Jammu and Kashmir (“J&K”) with ‘CO 272’ which applied the entirety of the constitution to the erstwhile state. The Basic Order governed along with the Constitution of J&K, the state’s constitutional relationship with the union. The last time a presidential order passed under Article 370 was superseded was in 1954 when the original 1950 Order was superseded by the Indian president to enact the Basic Order which had earlier been passed and voted upon in the J&K constituent assembly (“J&K CA”).
My article attempts to provide a biography of the Indo-J&K constitutional relationship with a focus on the Basic Order, its nature, function and place in the constitutional scheme. For this, I place reliance on J&K’s constituent assembly proceedings, which as I argue in my article, the Supreme Court seems reluctant to engage meaningfully with. But before any attempt is made to study the constitutional relationship under Article 370 and the Basic Order, the position of the state at the time of accession to India and how it differed from the mergers and accessions of the rest of princely states, needs to be analysed.
Accessions and mergers
The princely states that merged into the Indian dominion did so by either getting absorbed in the provinces contiguous to them and ‘ceding’ all law-making powers to the province or by merging in the dominion as a centrally administered territory. The third category of states were relatively smaller units that were merged to form larger units like Saurashtra. The new states created after the merger effected a revised IoA to India (“IoA”). These states: i) transferred all law-making powers to the union; ii) the state constitution was to be drafted within the framework of the Indian constitution; iii) eventually ii. was nullified and the Indian constitution was applied in entirety to the states. Even though these states were included in Part B of the first schedule along with J&K, Hyderabad and Mysore as I will show, there were many points of departure between the two.
It’s worth pointing out that the revised IoAs entered into by the third category of states did not provide for continuance of sovereignty of the state, whereas J&K’s IoA did under clause 8. In the following ways, J&K’s accession differed from the accession of the rest of the Part B states: i) only competence to legislate on defence, foreign affairs, communications was transferred to the dominion as opposed to wholesale transfer/cession of law-making powers; ii) the state constitution was not required to be drafted within the framework of the Indian constitution. The Indian Supreme Court in the Prem Nath Kaul case later held that the position of the state before accession i.e. when the ruler could have claimed sovereignty continued to remain the same after the accession as well. The Court makes two more important observations: i) It went on to hold that the sovereign character continued even after the application of the Article 370 (and through Article 370, Article 1) to the state since ‘it did not carry the constitutional position any further from where it stood after execution of the IoA’; ii) on the question whether the IoA or Article 370 affected any legislative powers of the ruler, the court answered in the negative holding that such powers were provided for by the state constitution of 1939 which the Indian constitution-makers could not have contemplated impinging upon for lack of competence. The court recognises that two distinct constitutional orders are at work here.
It has often been argued that the J&K is part of India’s asymmetric federal structure since the J&K CA was a body that derived its powers from the Indian constitution. A historical study of the accession though suggests that Article 370 merely mentions about J&K CA. The CA does not derive its powers from Article 370. It’s worth pointing out that the J&K CA was convoked by the ruler through his proclamation and the objectives of the assembly were enumerated by Sheikh Abdullah in his inaugural address. The objectives included drafting of the constitution, deciding the question of accession, determining the federal jurisdiction, among others.
The extra-constitutionality of the Basic Order
Actions of constituent power are considered extra-constitutional to the extent it aims, as a sovereign power, to undo the existing constitutional regime and replace it with a new constitutional order. I consider the Basic Order extra-constitutional in two contexts: i) In the domestic sphere (J&K), it is extra-constitutional, because it repeals the ruler’s constitution to the extent of repugnancy. The ruler’s constitution was finally repealed in entirety by the state constitution in 1957; ii) It is extra-constitutional in its interface with the Indian constitutional order. For explaining the second point, it is important to understand the scheme of Article 370.
Article 370 has two elements that deserve our focus – consultation and concurrence. The president can apply subjects from the union list & concurrent list and constitutional provisions corresponding to the IoA on the consultation of the state government. For the non-acceded subjects, and constitutional provisions not corresponding to the IoA, concurrence of the state government is required for the President to act. As per clause 2, any concurrences given by the state government before the J&K CA convenes require the ratification by the CA. A plain reading of clause 2 suggests that power to give concurrence ceases with the convoking of the J&K CA. In other words, this power can only be exercised in the pre-constituent assembly phase. The power cannot be exercised in the during-constituent assembly phase as that would be an absurdity and violative of clause 2. It also cannot be exercised in the post-constituent assembly phase, the way it has been, since that makes the entire exercise of J&K CA enacting a constitution and defining the federal jurisdiction, futile. This answers which of the provisions under Article 370 were temporary.
Coming back to the Basic Order, it is extra-constitutional for it departs from the entire scheme of Article 370. Firstly, Article 370 envisages a mechanism whereby the Indian president acts on the concurrences of the state government. In the case of the Basic Order, it was drafted by the J&K CA’s drafting committee. The draft was based on the report of the basic principles committee. When the draft was finally passed in the assembly, it authorised the state government to forward the draft to the President for appropriate action. Therefore, the President was in essence acting on the constituent assembly’s authorisation. Secondly, the variance in Article 370 created by two distinct processes of consultation and concurrences, was undone by the Basic Order since it contained both acceded and non-acceded subjects. Recall that matters which corresponded to the IoA were not required to be placed before the J&K CA under Article 370. Thirdly, Article 370 envisaged application of the concurrent list to the state. The Basic Order, however, omits it expressly in entirety.
This extra-constitutional nature of the Basic Order leads to my argument that there are two distinct constitutional orders at work, interlocked due to Article 370 initially and eventually by the Basic Order and the state constitution.
The relevance of extra-constitutionality
Its noteworthy that the Basic Order was treated as a constitution in its own right forming part of state constitutional law by the J&K CA. The challenge to Article 35A on the ground that it violates the basic structure of the Indian constitution reveals the fundamental problems with the current interpretations of the Basic Order and its provisions. If Article 35A is an amendment to the Indian constitution, why isn’t it part of the Indian constitutional text?
The Supreme Court in the Puranlal Lakhanpal case held that powers of modification were broad enough to encompass amendments as well. Even though the content of the Indian constitution gets modified or amended in application to J&K, characterising such modifications as amendments to the Indian constitution is fallacious. Amendment implies change in something that already exists. The Indian constitution existed in J&K’s constitutional space in the form of the 1950 presidential order which the Basic Order repealed in entirety. The Indian constitution and the Basic Order are temporally separated – the former was enacted in 1950 while the latter in 1954 along with the modifications. Modifications introduced therein like Article 35A are like any original provision of the constitution when enacted. As I have argued, the Indian constitution and the Basic Order, apply in different realms, derive their authority from different sources and change as per different rules. And since the Basic Order so to say is severed from Article 370 and creates two distinct constitutional orders, the test of ‘basic structure of the Indian constitution’ cannot be invoked to challenge any provision in the original text. As regards the function, the Basic order generally governs the relationship between the two levels of government while the state constitution governs the relationship between the people and the state institutions.
In the article, I attempted to define the Indo-J&K constitutional relationship beyond Article 370 arguing that Article 370 could not significantly change the nature of relationship under the IoA as the final decision-making was still the prerogative of the J&K CA. Had Article 370 prescribed the powers and functions of the J&K CA, one could have argued that the constituent assembly derived its powers from the Indian constitution, but since Article 370 merely mentions about the J&K CA, it is difficult to accept that argument.