The writ petitions argue that effective concurrence with a duly elected state government comprising of a council of ministers is a constitutional requirement that cannot be dispensed with under any circumstance.

The constitutionality of the Constitution (Application to Jammu and Kashmir) Order 2019 (“C.O. 272”) and the Constitution (Application to Jammu and Kashmir) Order 2019 (“C.O. 273”) issued by the President of India has been challenged in various writ petitions filed before the Supreme Court of India. Some of these writ petitions have also questioned the vires of the Jammu and Kashmir Reorganization Act.

In these writ petitions, the constitutionality of the C.O. 272 and C.O. 273 appears to be centred around the procedure adopted for applying these constitutional orders in relation to Jammu and Kashmir. The issues that have been raised are that the president has no power to apply these two constitutional orders, in the absence of the democratically elected government in the state, for the purposes of giving concurrence or consultation as provided in two provisos to Article 370(1)(d) of the Constitution.

In constitutional terms, the submissions stem from the basic premise that Article 370(1)(d) had compartmentalised the entire gamut of constitutional provisions for their application to Jammu and Kashmir in the two provisos.

The writ petitions rely on the Instrument of Accession signed by Maharaja Hari Singh to argue that the consent of the state government is mandatory in all matters other than those specified in the Instrument of Accession. As per the petitioners, it amounts “to an overnight abrogation of the democratic rights and freedoms guaranteed to the people of the State of Jammu and Kashmir upon its accession.”

The writ petitions argue that effective concurrence with a duly elected state government comprising of a council of ministers is a constitutional requirement that cannot be dispensed with under any circumstance. The submissions are deeply influenced by promises that obscurely flow from the Instrument of Accession and seem to suggest that the concept of concurrence under Article 370(1)(d) is derived from Clause 3 and 8 of the Instrument of Accession that saved the sovereignty and the exercise of any powers, authority and rights vested in the Maharaja except for matters ceded to the Indian Dominion under the Instrument of Accession.

However, the writ petitions have escaped noticing that just before the commencement of the Constitution of India on 26 November 2050, the Maharaja of Jammu and Kashmir, on 25 November 1950 issued a proclamation, which inter-alia, provided as follows:

The Constitution of India shortly to be adopted by the Constituent Assembly of India shall in so far it is applicable to the State of Jammu & Kashmir, govern the constitutional relationship between this State and contemplated Union of India and shall be enforced in this State by me, my heirs and successors in accordance with the tenor of its provisions

That the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State.

The bare reading of the aforesaid covenant to the proclamation shows that sovereignty that the Maharaja reserved to himself under the Instrument of Accession stood modified by the aforesaid proclamation. With the issuance of this proclamation, the only document that governed the constitutional relationship between India and Jammu and Kashmir was the Constitution of India, in so far as it became applicable to Jammu and Kashmir.

As such any reliance on the Instrument of Accession is inapposite. This position is supported by the judgment in Raghunathrao Ganpatrao v. Union of India 1994 Supp (1) SCC 191 where the Supreme Court ruled that various Instrument of Accessions signed with the princely states ceased to exist with the commencement of the Constitution and the source of rights and obligations flowed only from the Indian Constitution.

In respect of Jammu and Kashmir, Article 356 of the Constitution was extended to the state of Jammu and Kashmir by the Constitution (Application to Jammu and Kashmir) Third Amendment Order 1964.

Accordingly, it became permissible for the President of India to assume the powers of the Governor under the Constitution of India as applicable to Jammu and Kashmir and Jammu and Kashmir Constitution. There being no challenge to the proclamation issued by the president under Article 356(1) of the Constitution of India, any application of the doctrine of constitutional morality, as argued in the petitions, remains debatable and may not survive the tide of practical implications flowing out of the President’s Rule under Article 356(1).

Having said that, the larger question that begs consideration is whether the two provisos to Article 370(1)(d) divide the entire Constitution of India (i.e. all provisions of the Indian Constitution) into two parts for its application to Jammu and Kashmir. This question is important as the consent of the state government is the main fulcrum of challenge in the writ petitions. If the answer to the aforesaid question is no, can it be argued that certain provisions of the Indian Constitution were to be applied by the president to the state without any concurrence or consultation?

The answer is an emphatic yes. The salutary principle of interpretation of a proviso states that it qualifies the generality of the main enactment by providing an exception and taking out from the main provision, a portion, which but for the proviso would be part of the main provision (See J.K. Industries Ltd. v. Chief Inspector of Factories and Boilers (1996) 6 SCC 665).

If the aforesaid rule of interpretation were applied to a proviso, it would mean that two provisos to Article 370(1)(d) do not exhaust the main provision for their application to Jammu and Kashmir either with consultation or concurrence. In other words, some provisions of the Indian Constitution remain part of the main enactment and do not require consultation or concurrence of the state government. But the larger questions that loom large by following this interpretation is which provisions of the Indian Constitution are part of the main enactment i.e. Article 370(1)(d)?

Are there any provision of the Indian Constitution which states that the president was under a constitutional obligation to apply to Jammu and Kashmir? Which will be those provisions? The answer is simple but one that escaped years of constitutional discourse only in respect of Jammu and Kashmir. The basic structure of the Indian Constitution applies to both the Union and states without any exception.

Till date, the Supreme Court has never allowed any office established under the Indian Constitution either be it the Parliament or the State Legislature or the Executive to abrogate the basic structure of the Indian Constitution. The same theory also applies to Article 370(1). The provisions that would fall within the scope of the main enactment will be those provisions of the Indian Constitution, which form part of the basic structure as there can be no exception to or compromise with those principles. They are applicable to all bodies and offices established under the Indian Constitution including the office of the president.

Thus, any question as to the validity of C.O. 272 and C.O. 273 on the ground of lack of consent will take a backseat in respect of the application of basic structure to Jammu and Kashmir as those provisions would neither require consent nor consultation with the state government. Those provisions were applicable to the state by the mere factum of its admission into the Indian Union (R.C. Poudyal v. Union of India AIR 1993 SC 1804). However, the position was made deliberately different for Jammu and Kashmir, as many provisions of the Indian Constitution constituting part of the basic structure were not applied to the state when the president had issued the Constitution (Application to Jammu and Kashmir) Order 1954.

For instance, in Article 16(3), the words “Article 16(3)” in Article 35 were effaced and Article 35A was added in Part III in relation to the State of J&K precluding the enforcement of Part III by Indian citizens apart from permanent residents even if they infringed upon their fundamental rights. Part IV was completely obliterated by the president. Articles 325, 326, 327 and 328 dealing with eligibility for inclusion in electoral rolls, delimitation of constituencies etc. were effaced in relation to the elections to the Jammu and Kashmir State Legislature. Further, a proviso was added to Article 368, whereby the Parliament was stifled to apply any constitutional amendment in relation to Jammu and Kashmir unless the procedure under Article 370(1)(d) is adopted.

On the strength of Article 35A, the State Constituent Assembly enacted Section 6 of the State Constitution defining “Permanent Residents” by limiting it to those people who were “State Subjects” and had settled in the State in the period before May 1944. Only their descendants could claim the status of permanent residents. By using Section 6 of the State Constitution, the State Legislature and the state government had enacted various laws to exclude citizens other than permanent residents in matters of admission in the state-funded higher education institutions under Article 15 and 29(2), in matters of employment in the State Services under Article 15 and 16 and in purchase and acquisition of property for shelter under Article 19(1)(e) read with 19(1) (f).

Even the right to vote in state Assembly and local bodies elections was given exclusively to permanent residents despite the declaration of this right to adult suffrage as the most striking feature of our Constitution (See Kesavananda Bharti and others v. State of Kerala and others (1973) 4 SCC 1 [S.M. Sikri, C.J.]). Here, it requires emphasis that similar voting restrictions have been struck down by the United States Supreme Court in Rice v. Cayetano, 528 U.S. 495 (2000) on the ground that such voting restriction were race-based as they limited voting rights to specific ancestry and no others. The ratio of the decision laid down in Rice applies not only to voting restrictions placed on citizens other than permanent residents but also to exclusive rights conferred on permanent residents in matters of employment and State scholarships as they “demeaned a person by judging him on the basis of his ancestry instead of his or her merit and essential qualities”.

All these omissions under the C.O. 1954 made it constitutionally suspect. According to a report submitted by the Wadhwa Committee, 47,215 persons had migrated from West Pakistan in 1947 and settled in different areas of Jammu, Kathua and Rajouri. Since then, the people who migrated and their subsequent generations (third and fourth generations) who are numerically close to 2 lakhs had been residing and living in Jammu and Kashmir without enjoying any civil and political rights — a life of a destitute.

Similar treatment was meted to the 272 families of sweepers who were moved to Jammu from Gurdaspur and Amritsar in the year 1957 at the behest of the state government to take care of the crippled sanitation situation of Jammu caused by the strike of local sweepers. The apathy of the state government to the plight of these people demanded action that would establish a constitutional setup in the state in accordance with the Indian Constitution.

As the constitutional duty of the state is not only to protect rights, liberties and freedom of the individuals; but also to facilitate such rights, liberties and freedoms by taking positive steps in that direction (See M. Nagaraj v. Union of India (2006) 8 SCC 212), the C.O. 272 and C.O. 273 should be seen as a step in that direction. With the application of Part III & Part IV, Part VI, Part XV (Elections) and Part XX (Amendment of the Constitution) of the Constitution of India, the constitutional provisions which had been vacated by the president by the C.O. 1954, have been reoccupied by the C.O. 272 and C.O. 273. Most of the provisions falling in these parts constitute the basic structure of the Indian Constitution. Hence, their application to the state of Jammu and Kashmir did not require any concurrence or consultation as those provisions were binding on the state government. Such provisions cannot be made the subject matter of consent of the state executive under the Constitution.

By virtue of his oath under Article 60 of the Constitution of India to uphold, preserve and defend the Constitution, the president is required to ensure the preservation of basic structure while exercising his powers under Article 370 (1)(d).

As such, the decision of the president to apply constitutional provisions constituting basic structure cannot be stifled by the state government by refusing to give its concurrence under the garb of the proviso to Article 370(1)(d) as concurrence of the state government in matters pertaining to basic structure is not even the subject matter of the provisos.

For years, the Supreme Court has taken the lead in the fight for the preservation of the basic structure. It has resisted several attempts to demolish the basic structure. This time, too it will equally be its responsibility to preserve these foundational principles while adjudicating the vires of C.O. 272 and C.O. 273.

The author is a senior advocate.