As Clever As it Gets: On the Presidential Order Amending Article 370

By: Digvijay Chaudhary


Six decades of the Indian Supreme Court jurisprudence on the power of the President under Article 370(1) afford strength to the constitutionality of the recent Presidential Order C.O. 272 or so it seems. Through the course of this article, it shall be established how the Presidential Order C.O. 272 (hereinafter ‘C.O. 272’) has no backing in law. I first trace what the current law states about Article 370 as held in Sampat Prakash and then prove how C.O. 272 lacks any constitutional backing. I then conclude that the Supreme Court is not required to overrule the six decades of jurisprudence because the concerns might appear conflicting but are, constitutionally, different. For our consideration, let us have a quick look at the three issues dealt by the Court in Sampat Prakash:

Regarding the Temporary Nature of Article 370

The court stated that the purpose of introducing Article 370 was to empower the President to exercise his discretion in applying the Indian Constitution while the ‘situation in Kashmir remained unchanged’. And thus, “…the legislative history of this article cannot, in these circumstances, be of any assistance for holding that this article became ineffective after the Constituent Assembly of the State had framed the Constitution for the State.”

Adding further on the permanent nature of the article, the court stated that the temporary nature is subject to clause (3) of Article 370, which provides that the recommendation of the Constituent Assembly of the State is required to scrap this article. Now, it so happened 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 the Ministry of Law Order No. C.O. 44 dated 15 November 1952, and laid down that from 17 November 1952, the article was to be operative with the substitution of the new explanation for the old one as it existed at that time. This, according to the court, clearly stipulated the desire of the Constituent Assembly to continue with this article.

Extent of the President’s Power under Article 370(1) 

The Court held that Article 370(1) requires the President to specify the provisions of the Constitution which are to be applied to the State of Jammu & Kashmir, and when making such specification, he is also empowered to specify exceptions and modifications to those provisions. And the modification as held above was to be given the ‘widest possible amplitude’ via Puranlal Lakhanpal v. The President of India and Others. It was meant to include the power to ‘extend’ and ‘enlarge’ the Constitutional provision, including making a ‘radical transformation’. This power under article 370(1) is so vast that the President can amend or erase any law in the Constitution as applicable in relation to the state.

Applicability of Article 368 of the Constitution

It was argued that Article 368 exists as a special provision concerning the amendment of the Constitution (even in relation to that state) and when such a special provision for amendment exists, Article 370 should be interpreted as being no longer applicable for amending or modifying the provisions of the Constitution applicable to that state.

The Court held that Article 368 has been applied to Jammu & Kashmir primarily with the object that the amendments made by the Parliament in the Constitution of India as applicable to the whole country should also take effect in the State of Jammu & Kashmir. The Court goes on to state that when an amendment is made under Article 368 which is applicable to the State of Jammu & Kashmir, it is necessary to take the concurrence of the State Government. After such concurrence is obtained, the amendment shall take effect after an order under Article 370(1) is made.

The concern here is that the present amendment was not made under Article 368, but the President had the power to ‘amend’ the Constitution as applicable to the State of Jammu & Kashmir under Article 370(1). This is where it gets interesting. Until now, the Presidential Order was perfectly constitutional as it obeyed all that the Supreme Court had to say over the years. But the catch here is the meaning of the term ‘modification’ in Article 370(1) is different from the term used in Article 370(3).

MEANING OF THE TERM ‘MODIFICATION’ USED IN ARTICLE 370(1) AND ARTICLE 370(3)

Now, to our concern, ‘modification’ is used in both Article 370(1) and Article 370(3). What’s the difference? Article 370(1) gives the ability to ‘modify’ provisions other than Article 370 in relation to the state. Whereas, Article 370(3) gives the ability to ‘modify’ Article 370 itself, only after discharging the additional burden of taking the recommendation of the Constituent Assembly of the State.

Now, Puranlal Lakhanpal v. The President of India and Others ruled that ‘modification’ used in Article 370(1) is to be given the widest amplitude. It did not mention Article 370(3). Therefore, the President can ‘amend’ any article in the Constitution to be applicable to the State of Jammu & Kashmir other than Article 370. To ‘modify’ Article 370, the procedure is stated in Article 370(3), which requires the recommendation of the Constituent Assembly. The C.O. 272 confuses the interpretation given by the court to the term ‘modification’ as used in Article 370(1) to that as used in Article 370(3). The purpose of introducing Article 370 (according to Sampat Prakash) was to empower the President to exercise his discretion in applying the Indian Constitution while the ‘situation in Kashmir remained unchanged’. So, amending the Indian Constitution in relation to the state as it existed without the introduction of Article 370 is the purpose of introducing Article 370 in the first place. Therefore, the term ‘modification’ in article 370(1) has been interpreted to mean even effacing a part of the Constitution in relation to the State if the President finds it appropriate. 

C.O. 272, via powers under Article 370(1), amends Article 367 (an interpretation provision) which it can. Under Article 370(1), it can amend any provision of the Constitution in relation to the state other than Article 370. However, C.O. 272 says that while reading Article 370, one has to interpret the meaning of ‘constituent assembly’ in Article 370(3) as ‘legislative assembly’ of the state. And as mentioned above, Article 370 can only be amended via the procedure mentioned in Article 370(3). 

So, the contention here as to why one cannot substitute the term ‘constituent assembly’ as given in Article 370(3) is:

  1. ‘Modification’ as used in Article 370(3) should only mean ‘clarificatory modification’ owing to the reasons stated below. And hence, such a change is not allowed in Article 370 in the first place.
  2. Whatever change happens in Article 370 has to take place via the procedure mentioned under Article 370(3) and in absence of that, any change becomes untenable in law.

WHY ‘MODIFICATION’ UNDER ARTICLE 370(3) SHOULD BE DIFFERENT THAN THAT UNDER ARTICLE 370(1)

The term ‘modification’ appears twice in Article 370 because of one reason alone, that is,  to accord different meanings to both the provisions. Else, Article 370(1) need not exclude Article 370 from the ‘modifications’ by the President. It could have been easily included in the provision. But Article 370(1) allows modification of any provision of the Constitution other than Article 370 itself. Article 370(3) uses the term separately to act as a double check on the amendment of Article 370. Article 370 is the only connection with the State of Jammu & Kashmir, and hence, modifying it liberally would be against the very purpose of its introduction since it would then give the President infinite powers over the article, hence making the requirement of ‘constituent assembly’ redundant. The aim of both the provisions is different, and hence, ‘modification’ as meant in Article 370(1) should be construed to be different than ‘modification’ in Article 370(3). Under Article 370(3), the term ‘modification’ should mean only ‘clarificatory modification’.

Double-check on any modification— first being the recommendation of the Constituent Assembly, and second being the term ‘modification’ meaning only ‘clarificatory modification’ under Article 370(3), makes it possible to ascribe meaning to the usage of ‘modification’ under Article 370(3). The essence of Article 370(3) then becomes that one may abrogate the whole article if one follows the procedure, but if one wants to ‘modify’ the provision, the ‘modification’ part stops one to issue more than a ‘clarificatory modification’. This is done to prevent the abuse of the particular article, and in this light, is the reason ascribed to the existence of ‘modification’ occurring twice in the article.

Due to this double-check on the provision, an amendment which changes the whole basis of functioning of Article 370 by replacing ‘constituent assembly’ with ‘legislative assembly’ is untenable in law and such a change cannot be introduced in the first place in Article 370.

CAN THE ‘LEGISLATIVE ASSEMBLY’ ISSUE RECOMMENDATIONS?

Now that we know that ‘constituent assembly’ as occurring in Article 370(3) cannot be replaced, notwithstanding the above contentions, what would the consequence of such a change be? The thing is that even the ‘legislative assembly’ of the state cannot recommend the amendment of Article 370. Even its hands are tied by the virtue of Article 147 of the Jammu & Kashmir Constitution.

Article 147 of the Constitution of Jammu & Kashmir states:

Provided further that no bill or amendment seeking to make any change in:

(a) this section;

(b) the provisions of the sections 3 and 5; or

(c) the provisions of the Constitution of India as applicable in relation to the State; shall be introduced or moved in either House of the Legislature.

This means that no bill or amendment can be moved in either House of the Legislature which seeks to make any change in the provisions of the Constitution of India as applicable in relation to the State (Article 1 and Article 370). Thus, one cannot change Article 1 and Article 370 of the Constitution of India even by substituting ‘legislative assembly’ in lieu of ‘constituent assembly’ because Article 147 makes it clear that no such change is to be introduced in the either House of the Legislature. So, replacing ‘constituent assembly’ with ‘legislative assembly’ brings no change.

The question this raises is that if the party knew of Article 147, then why replace ‘constituent assembly’ with those words whose hands are already tied? This means that if they had the knowledge of such a provision, this whole exercise could be questioned under ill intentions.

And assuming that if they did not have the knowledge of Article 147 then the whole exercise becomes redundant via Article 147 alone. Because if the substituted term is not allowed to issue recommendations, then how can concurrence of a body which is not even mentioned pass the legal requirement?

Not to mention, if the recommendation of the Constituent Assembly which gave effect to Presidential Order No. C.O. 44, dated 15 November 1952, is taken to mean the desire of the Constituent Assembly to continue with the provision then Article 147 of the Jammu & Kashmir Constitution, in the same spirit, should serve as a desire not to bring any amendment to Article 1 and Article 370 of the Indian Constitution.

So, what is the end result? The procedure followed is not given under the law. The steps followed by the presidential order are not in accordance with the Constitution. Even after twisting the provisions, the Presidential Order gets nothing. The process has been twisted but it does not change anything apart from the fact that it is, in the end, not according to the Constitution.


(Digvijay is currently an undergraduate at Dr. Ram Manohar Lohiya National Law University, Lucknow.)

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