Omar Bennett
The constitutional order in India is a complex and carefully constructed framework that outlines the fundamental principles and guidelines for governing the country. One of the key aspects of India's constitutional order is the application of various articles, such as Article 370, which has been a point of contention and debate. Article 370, often deemed a 'temporary provision', has significant implications for the state of Jammu and Kashmir, as it outlines the special rights and privileges enjoyed by its residents. Amendments to this article, such as the 2019 notification by President Ram Nath Kovind, have sparked discussions on the constitutionality of such changes and their impact on the region's status. The interpretation and application of the constitutional order in India are crucial aspects of the country's governance and continue to shape its political landscape.
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What You'll Learn
The Constitution (Application to Jammu and Kashmir) Order, 2019
In India, a Constitutional Order is a notification that makes changes to the Constitution.
On August 5, 2019, the Government of India imposed unprecedented legal changes in Indian-administered Jammu and Kashmir with the Constitution (Application to Jammu and Kashmir) Order, 2019, or C.O. 272. This Presidential Order amended Article 370 of the Indian Constitution, which had previously given Jammu and Kashmir a special status of autonomy. The Order also overturned the legal basis for seven decades of Indian jurisprudence relating to Indian-administered Jammu and Kashmir.
The 2019 Order "supersedes" the 1954 Order, which had given special rights and privileges to the residents of Kashmir. It declares that "all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir". This means that the Order applies all the provisions of the Indian Constitution to J&K, with a few exceptions to Article 367 (Interpretation) of the Indian Constitution. These exceptions include construing references to the Sardar-i-Riyasat, J&K's constitutional head of state, as the Government of India-appointed Governor of the State. It also construes references to the Government of Jammu and Kashmir as the Government of India-appointed Governor of Jammu and Kashmir.
The Order equates the Sardar-i-Riyasat, the head of state according to the Jammu and Kashmir Constitution, with a Governor appointed by the Government of India without local democratic approval. The question of the head of state was one of the primary mandates of the Jammu and Kashmir Constituent Assembly, and its answer was deliberated on at length and enshrined in the Jammu and Kashmir Constitution.
The August 5 notification has been criticised for bypassing the 'Constituent Assembly' and amending the expression in the proviso to 'Legislative Assembly'. An amendment to Article 370 should have undergone the constitutional amendment procedure envisaged under Article 368 of the Constitution. However, the government can argue that the amendment only applies to Jammu and Kashmir and not the entire Dominion of India, and so does not require a constitutional amendment.
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Article 370 and its constitutionality
The Indian Constitution's Article 370 gave Jammu and Kashmir, a region in the north of the Indian subcontinent, special status. Since 1947, the larger region of Kashmir has been the subject of a dispute between India, Pakistan, and China. Article 370, which was included in Part XXI of the Indian Constitution, titled "Temporary, Transitional and Special Provisions," stated that the Constituent Assembly of Jammu and Kashmir would be empowered to recommend the extent to which the Indian Constitution would apply to the state.
The article gave the state the power to have its own constitution, a separate flag, and autonomy in internal administration. Central legislative powers over the state were initially limited to the subjects of defence, foreign affairs, and communications. It was a "temporary provision" intended to last until the formulation and adoption of the state's constitution.
The state's constituent assembly, however, dissolved itself on January 25, 1957, without recommending either the abrogation or amendment of Article 370. As a result, the article was deemed to have become a permanent feature of the Indian Constitution, as confirmed by various rulings of the Supreme Court of India and the High Court of Jammu and Kashmir.
On August 5, 2019, the Government of India issued a Presidential Order amending Article 370 and superseding the 1954 order, making all the provisions of the Indian Constitution applicable to Jammu and Kashmir. This move effectively revoked the special status of Jammu and Kashmir and allowed the entire Indian Constitution, with all its amendments, exceptions, and modifications, to apply to the region.
The constitutionality of the amendment to Article 370 has been a subject of debate. Some argue that the amendment should have undergone the constitutional amendment procedure under Article 368 of the Constitution. However, the government countered that the amendment only applies to Jammu and Kashmir and not the entire Dominion of India, and therefore does not require a constitutional amendment. The Supreme Court of India upheld the power of the President of India to abrogate Article 370, stating that it was only a temporary provision to facilitate the accession of Jammu and Kashmir to the Union of India during a time of internal strife and external aggression. The Court also held that the Constitution of Jammu and Kashmir was always subordinate to the Constitution of India.
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The role of the President
The President of India is the head of state and the first citizen of India. They are indirectly elected every five years by an electoral college comprising the elected members of both houses of India's parliament—the Lok Sabha and the Rajya Sabha—as well as the elected representatives of all legislative assemblies of the states of India and the union territories of Delhi and Puducherry. The President of India is called the de facto commander-in-chief of the Indian Armed Forces and is responsible for national defence and emergency decisions to protect the Constitution and the nation's stability.
The President's role is largely ceremonial, separate from the government's daily administration, which is handled by the Council of Ministers. However, they hold significant powers in areas like the legislative, executive, financial, and judicial domains. The President can summon and prorogue Parliament, give assent to bills, and address the nation in times of need. They can also play a role in the legislative process and have the power to appoint and dismiss government officials, including the Prime Minister, and to request information from the Prime Minister and other ministers.
The President is responsible for ensuring that the laws and actions of the government are in accordance with the Constitution and defending and protecting the Constitution of India and its rule of law. The President shall not accept any actions of the executive or legislature that are unconstitutional. They are the foremost, most empowered, and prompt defender of the Constitution.
The President can declare a state emergency in any Indian state in the event of the failure of constitutional machinery in the state, which needs to be ratified by parliament within two months and can be in place for up to three years. They can also proclaim a financial emergency in the event of a threat to the country's financial stability, which lasts for two months but can continue indefinitely with the approval of parliament. In this scenario, all financial bills passed by the federal and state governments require presidential approval.
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The role of the Constituent Assembly
The Constituent Assembly of India was formed to frame the Constitution of India. It played a major role in the formation and enactment of many laws. The idea of the Constituent Assembly was first proposed by M.N. Roy, a pioneer of the Communist movement in India, in 1934. This idea was later proposed by the Indian National Congress in 1935. The Assembly consisted of 389 members from all sections of society, including fifteen women. The Provincial Assembly elected the members of the Constituent Assembly of India by a single, transferable-vote system.
In 1938, Pt. Jawahar Lal Nehru made a statement regarding the Constitution and Assembly, saying that the "Constitution of free India must be framed, without outside interference, by a constituent assembly elected based on adult franchise". Later, in 1939, C. Rajagopalachari, an independence activist, Indian statesman, writer, and lawyer, also raised his voice for the making of the Constituent Assembly of India. The British accepted the demand for a Constituent Assembly through their 'August offer' of 1940.
The Constituent Assembly of India met for the first time on 9 December 1946 and reassembled as a sovereign body on 14 August 1947. The Assembly framed the Constitution of India and implemented it on 16 May 1946. Congress won the majority of the seats (208) in the 1946 elections, while the Muslim League won only 73 seats. As a result of losing the election, the Muslim League refused to work with Congress, and the political situation deteriorated. Hindu-Muslim riots began, and Muslims demanded their own Constituent Assembly.
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The impact on the residents of Kashmir
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens. It is a comprehensive document that consists of 448 articles, 12 schedules, and 104 amendments that have been made so far.
The impact of the constitutional order in India, specifically the revocation of Article 370 and Article 35A, has had a significant impact on the residents of Kashmir. Article 370 and 35A were introduced into the Constitution of India soon after Indian independence and granted Jammu and Kashmir, a Muslim-majority region, a significant level of autonomy within Indian law. These articles allowed the state to have its own constitution, a separate flag, and the freedom to make its own laws, except in matters of foreign affairs, defence, and communications.
The revocation of these articles in 2019 by the Hindu nationalist Bharatiya Janata Party (BJP) government led by Prime Minister Narendra Modi has had wide-ranging consequences for the residents of Kashmir. Firstly, it has resulted in the loss of special rights and privileges that were previously enjoyed by the residents. This includes the right to permanent residency and land ownership, which was largely restricted to local Kashmiris. Now, people from outside the state can buy property in Kashmir, and there are fears among Kashmiris that the BJP ultimately wants to change the demographic character of the region by allowing non-Kashmiris to settle there.
Secondly, the revocation has led to a heavy-handed security response in the region. In the lead-up to the announcement, tens of thousands of additional Indian troops were deployed, a major Hindu pilgrimage was cancelled, schools and colleges were shut, tourists were ordered to leave, telephone and internet services were suspended, and regional political leaders were placed under house arrest. This has caused significant disruption to the daily lives of Kashmiris and has limited their freedom of movement and access to information.
The revocation has also heightened tensions with Pakistan, which has long seen itself as the protector of Kashmir's Muslim-majority population. Pakistan's confrontational rhetoric and actions, such as expelling the Indian ambassador, have increased tensions in the region and negatively impacted the peace process in neighbouring Afghanistan. There are concerns that the situation in Kashmir could escalate into full-blown violence between Muslims and Hindus, not just in Kashmir but across the entire country.
Finally, the revocation of Article 370 and 35A has had a psychological impact on Kashmiris, many of whom feel that their unique identity and autonomy have been eroded. The articles had been the basis of Kashmir's complex relationship with India for over 70 years, and their removal has been seen by some as a betrayal of the promises made to Kashmir at the time of its accession to India.
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Frequently asked questions
The constitutional order in India is a complex and evolving concept, but in general, it refers to the legal and political framework that defines the country's governance. This includes the Constitution of India, which is the supreme law of the land, as well as various laws, policies, and procedures that interpret and apply the Constitution.
Article 370 of the Indian Constitution was a temporary provision that granted special rights and privileges to the residents of Jammu and Kashmir. It allowed the state to have its own constitution and autonomous government, with limited powers vested in the Central Government of India.
While there have been attempts to amend or repeal Article 370, it still remains a part of the Indian Constitution. However, in 2019, the President of India issued a notification under Article 370 that amended the Constitution (Application to Jammu and Kashmir) Order, 2019, effectively extending all the provisions of the Indian Constitution to Jammu and Kashmir.
The 2019 notification superseded the Constitutional Order (CO) of 1954, which had provided special rights to the people of Jammu and Kashmir. It effectively applied all the provisions of the Indian Constitution, with its amendments, exceptions, and modifications, to the region, thereby integrating it more closely with the rest of India.
There are often debates and legal challenges surrounding the interpretation and implementation of the constitutional order in India. For example, the 2019 notification amending Article 370 has been controversial, with some questioning its constitutionality and others celebrating it as a step towards a more unified nation. The Supreme Court is also set to adjudicate on petitions related to the constitutionality of certain articles within the Indian Constitution.
