In a landmark verdict on the Article 370 case, the Supreme Court has unequivocally declared executive notifications insufficient for amending substantive provisions of the Constitution. The court emphasized that amendments must adhere to the prescribed procedure outlined in Article 368, necessitating the passage of an amendment bill in Parliament with the stipulated majority.
The Constitution Bench, in its ruling, nullified a segment of the President’s notification (Constitution Order 272), specifically rejecting the addition of a clause to Article 367. This clause aimed to reinterpret references to the “Constituent Assembly of Jammu and Kashmir” as the “Legislative Assembly of Jammu and Kashmir,” and the “Government of J&K” as the “Governor of J&K.” These changes facilitated the subsequent issuance of Constitution Order 273, declaring Article 370 inoperative without the J&K Constituent Assembly’s recommendation, which had been dissolved in 1957, as required by the proviso to Article 370(3).
The court disapproved of alterations to Article 367 via a Presidential notification (CO 272), asserting that these changes had a substantive impact on Article 370. The recommending body for abrogating Article 370 was shifted from the J&K Constituent Assembly to the J&K Legislative Assembly, rendering the alterations tantamount to an amendment to Article 370.
Chief Justice DY Chandrachud, dissenting from this clandestine amendment approach, stated in the judgment: “While the ‘interpretation’ clause can be used to define or give meaning to particular terms, it cannot be deployed to amend a provision by bypassing the specific procedure laid down for its amendment. This would defeat the purpose of having a procedure for making an amendment” (Para 389).
The judgment cautioned against the dire consequences of permitting circuitous amendments, asserting that it would be disastrous. “Many provisions of the Constitution would be susceptible to amendments which evade the procedure stipulated by Article 368 or other provisions…Hence, amendments cannot be carried out by bypassing a procedure which has been laid down for that purpose,” the judgment stated (Para 390).
Illustrating the danger with a hypothetical example, the judgment questioned whether a public notification could delete all castes, races, or tribes from the list of Scheduled Castes, obviating the mandates of various provisions, without following the prescribed procedure by Article 368.
Despite invalidating the changes made to Article 367 through CO 272, the Court upheld the repeal of J&K’s special status, asserting that the President did not require the J&K Constituent Assembly’s recommendation to declare Article 370 inoperative. Thus, CO 273 was upheld, marking a significant chapter in constitutional interpretation. For a more detailed analysis, refer here.
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