Constitutional Pluralism and Article 370

Recently, the Indian Supreme Court finished hearing oral arguments on a batch of petitions challenging the constitutional validity of The Constitution (Application to Jammu and Kashmir) Order, 2019 which extended all provisions of the Indian Constitution to Jammu and Kashmir.

As has been explained previously, by imposing a state of emergency and substituting the phrase ‘legislative assembly’ in place of ‘constituent assembly’ in Article 370 through a presidential order, the central government bypassed the requirement of having a democratically elected body of the state express their voice with regards to any future constitutional amendments related to the state.¹⁾ Subsequently, through a statutory resolution in the Upper House of the Indian Parliament, the central government abrogated most of Article 370 and thereby the state’s constitutionally mandated autonomous status. Finally, Parliament also passed the Jammu and Kashmir Reorganization Act, 2019 which bifurcated the state into two Union Territories, namely Jammu & Kashmir and Ladakh

The petitioners’ arguments challenging the constitutional validity of the events of 2019 can broadly be grouped into three heads. First, they argued that the procedure followed to abrogate Article 370 was manifestly arbitrary, contrary to the rule of law and the principles of the Indian constitutional scheme. Second, they also argued that upon the Constituent Assembly of Jammu and Kashmir passing the Jammu and Kashmir Constitution, 1956 and dissolving, Article 370 lost its temporary character and was essentially frozen in time. Finally, the petitioners challenged the validity of the Reorganization Act, specifically contending that the Union is not constitutionally empowered to downgrade a state to a Union Territory.

However, in the midst of these arguments, the Court pondered upon the nature of the relationship between the Constitution of India and the Constitution of Jammu and Kashmir. While the Court is unlikely to hand down an authoritative ruling on this relationship, the exchanges between the judges and lawyers offer us a valuable avenue to explore. By analysing the Jammu and Kashmir Constituent Assembly Debates, this piece examines the nature of the relationship envisaged by the two constitutions. I argue that the constitutional principle that undergirded the previously existing constitutional relationship between India and Jammu and Kashmir is heterarchy. I go on to show that the relationship between the Jammu and Kashmir and India is best understood as heterarchy stretched to a radical interpretation, constitutional pluralism.²⁾ This reframing would lead us to the conclusion that, in preventing the democratic exercise of voice, the central government violated the constitutional scheme envisaged. Additionally, it would require us to re-evaluate the constitutionality of previous central actions like the replacement of a democratically elected head of state (Sadr-i-Riyasat) with a centrally appointed one (governor).

On Supremacy and the Constitutional Relationship

Jammu and Kashmir has often been considered exceptional and an exemplar of asymmetrical federalism in India, in large part due it being the only state in India to have its own constitution. The general consensus on the Jammu and Kashmir Constitution is that it was authorized by and therefore subject to the Indian Constitution. In fact, before the Supreme Court, the Government of India propagated a similar view. They argued that upon the application of the entire Constitution of India, the constitutional scheme did not permit a situation with a second constitution setting forth a governance system for the state. Drawing from this, they argued that the Indian Constitution permitted the President to exercise constituent power vis-a-vis Article 370, especially since the Constituent Assembly of Jammu and Kashmir had been dissolved.

However, in a previous decision, the Indian Supreme Court had held that the exercise of central executive and legislative powers were subject to approval by the Jammu and Kashmir Constituent Assembly. As such, constituent power for the state rested with the Assembly and not the President. Drawing on this, the petitioners challenged the arguments by the central government. They constructed the relationship between the Constitution of India and the Constitution of J&K as complementary with Article 370 serving as tunnel for the traffic. They went on to argue that refrains to ‘One Nation, One Constitution’ had no grounding in the Indian Constitution which reinforced the notion of creating autonomous states. On their reading the Jammu and Kashmir Constitution does not exist within the Indian Constitution as a subnational constitution, and yet they did not provide a positive argument regarding the nature of the relationship. For the most part, the Judges steered clear of this debate. Yet when emphasizing that the integration of Jammu and Kashmir in 1947 was a political fact and complete, Justice Khanna framed the question this piece seeks to answer, which is superior?

On Heterarchy and Constitutional Pluralism

While Article 370 marked the formal recognition of the demand for a constituent assembly for the state, this demand originated as a claim for local democratic governance against the ‘outsider’ Dogra kings. During the negotiations with the central government over the drafting of Article 370, the state government expressed this demand as concerns regarding the prevention of external (in this case, Indian) domination of the state. Responding to their history of monarchical rule, imposed by a dynasty they viewed as outsiders, the state government was keen to protect local democratic governance, through autonomy.

In its final form, Article 370 reflects a resolution of these concerns. Through inserting consultation and concurrence requirements for extending national legislative competency and provisions of the Indian Constitution to the state, the state government created a system of constitutional interaction between the two governments which would prevent the Union from exercising unilateral jurisdiction and therefore, domination. This heterarchy, that is the prevention of domination of one unit of government by another is best reflected in Article 370(3). While the provision allows the President of India to modify or declare the entire article inoperative, they can only act upon receiving a recommendation from the constituent assembly of the state. Instead of structuring the relationship between India and Jammu and Kashmir as one where the central government occupies a dominant position over the state government, Article 370 provided a system of governance premised on consultation and consent which retained the autonomy the people of the state desired.

The final form of this relationship was cemented by the Constituent Assembly of Jammu and Kashmir. But first, the Assembly too was confronted by questions of its powers and limitations. The Assembly debates shows that the members of the Assembly saw it as a sovereign body, enjoying the confidence of the people, unrestrained by previous happenings, free to decide on all questions as an ‘independent man’. Claiming authority as a representative of the people to exercise constituent power, the Assembly debated the future of their constitutional relationship with India. The High Court of Jammu and Kashmir (operating outside the Indian framework then) upheld this view, finding that despite Article 370, the state government retained unfettered internal sovereignty and was capable of exercising legislative and constituent authority.

For the Assembly, the relationship between Jammu and Kashmir and India was based on a commitment to similar transformative constitutional principles, envisioning a permanent federal scheme which allowed the people of the state to safeguard their autonomy while establishing a cooperative relationship between the Union and the State. Its approach was undergirded by the heterarchical principle embodied in Article 370. As one member explained, while Article 370 was envisaged as temporary, its central principles of consultation, concurrence and primacy of the Jammu and Kashmir Constituent Assembly (and eventually Constitution) were to form the basis of the relationship between India and Jammu and Kashmir. When debating a new constitution for the state, they argued that many provisions of the Constitution of India were too rigid and unsuitable for the state, thereby stating their desire for a new order, which while sharing similar underlying normative commitments with the Indian Constitution would have provisions suited to the contextual concerns and demands of the people of the state.

This vision of the Assembly was put into action through the ‘Basic Order’ read with the Jammu and Kashmir Constitution. Together, they envisaged a constitutional regime in the state which was marked by crucial departures from the Indian constitutional scheme. For instance, differing from other states, Jammu and Kashmir was to have an elected head of state. Additionally, federal emergency provisions of the Indian Constitution could only be applied to the state with the concurrence of the state government. Most importantly, any future amendments to the Constitution of India were declared inoperative unless applied in accordance with the provisions of Article 370 which mandated consultation and concurrence of the government of the state. Provisions relating to the reorganisation of states while included required the consent of the state legislature for their application to Jammu and Kashmir.

The J&K Constitution also provided for a varied rights regime. While certain fundamental rights were applicable to the state, rights like the right to property, equality of employment et al were excluded to ensure that the state could carry out its economic program of redistribution. Further, the power to introduce reasonable restrictions upon the application of other fundamental rights and freedoms in the state was reserved with the state legislature instead of the Parliament. Instead the Constitution foisted a host of duties upon the state government which provided a roadmap through positive rights to the planned state and society envisioned by the Assembly. Finally, to enforce this new rights regime, the Constitution also carved out autonomy over local legislative and executive power. For instance, differing from the other states, residuary executive and legislative authority was retained with the state. Additionally, the Constitution secured the scope for exercise of local expertise by preventing the centre from imposing federal finance provisions of the Indian Constitution upon the state. Finally, to cement this relationship, Article 147 also declared certain articles of the state Constitution as beyond the powers of legislative amendment.

Fundamentally, the Jammu and Kashmir Constitution is not an example of subnational constitutionalism as its authority is not derived from the Indian Constitution. Instead, it makes its own autonomous claim to authority and provides for a varied rights regime, local authority to enforce such a rights regime and structures of political representation which protect the exercise of voice by the people of the state. In this sense, it presents as constitutional pluralism where the constitutional order of Jammu and Kashmir and the constitutional order of India exist autonomously and interact with each other. These two orders are held together by shared normative transformative commitments and a constitutional link. This link, Article 370 in the Indian Constitution, is the tunnel between the two constitutional orders.

The Implications of Pluralism

So far I have argued that the constitutional relationship between Jammu and Kashmir and India is best understood as constitutional pluralism. As such, the answer to Justice Khanna’s question regarding which constitution is superior is quite simply, neither. This relationship presents as a version of systems pluralism that is, multiple (in this case, two) coordinated constitutional orders with neither making hierarchical claims to authority over the other.

One might preliminary argue that the Indian constitutional scheme does not permit claims of constitutional pluralism. However, Justice Balakrishnan’s opinion in Pu Myllai Hlychho with respect to the untenability of an interpretation of the sixth schedule which would coordinate a Constitution within a Constitution is limited to the interpretation of the role of the Governor in context of the Sixth Schedule Additionally, I’m not attempting to construct the Jammu and Kashmir Constitution as existing within the Indian Constitution. Instead of looking at this as an example of subnational constitutionalism, I have argued that these are two separate and autonomous constitutional orders which while interacting with each other are not legitimized by the other.

The Indian Supreme Court has in the past suffered from not considering the Jammu and Kashmir Constitution or Constituent Assembly Debates in their decisions. But as I have shown, the debates reveal valuable facets of constitution making in the state, which if considered, offer us a radical interpretation of the constitutional relationship between India and Jammu and Kashmir. On this interpretation, the actions of the central government in 2019 are constitutionally invalid. But beyond this case, these debates also offer us a way to re-evaluate the Indian jurisprudence on the state as well as other asymmetrical provisions of the Indian Constitution.