INDIAN INSTITUTE OF LEGAL

STUDIES

Subject – INTERPRETATION OF
STATUES

TOPIC – SIGNIFICANECE OF THE

INTERPRETATION CLAUSE OF THE
CONSTITUTION WITH SPECIAL REFERENCE
TWO THE ABBROBATION OF ARTICLE 370 OF
THE CONSTITUTION

SUPERVISED BY:
MS. RINKY SHARMA
(ASSISTANT PROF. OF LAW )
SUBMITTED BY
NAME: RAJJAK HOSSEN
ROLLNO: 42; SECTION-A
COURSE: BALLB (6TH SEMESTER)
 ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my

sincerest thanks to Assistant Professor in Law, Indian Institute of Legal Studies,
for her invaluable guidance, sound advice and affectionate attitude during the
course of my studies.

I have no hesitation in saying that he/she molded raw clay into whatever I am
through his/her incessant efforts and keen interest shown throughout my
academic pursuit. It is due to his/her patient guidance that I have been able to
complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of
information therein. I also express my regards to the Library staff for
cooperating and making available the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me

throughout the project work.

Date: RAJJAK HOSSEN

(BALLB 5 YEARS 6TH SEMESTER)

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 TABLE OF CONTENTS
Chapter=1
1.1 Introduction……………………………………………….….…5
1.2 Meaning and Definition of
Interpretation……………………….5
Chapter=2
2.1 Interpretation of Statutes is required for two basic reasons………6
2.2 Some Important Points to be taken care of in the context of
interpreting Statutes……………………………………………….…6
2.3Types of interpretation…………………………………………….9
2.4 General rules of interpretation of the
Constitution……………….10
2.5 Article 367 in The Constitution Of India 1949………………….15
Conclusion…………………………………………………...……...19
Bibliography

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 SYNOPSIS
STATEMENT OF PROBLEM: A witness under oath commits perjury by
making a statement in a court or other proceeding that the witness knows is not
true. The statement must be “material” to the subject of the proceeding,
meaning that it must have some relationship to the lawsuit, investigation, or
inquiry of the proceeding.

RESEARCH AIMS & OBJECTIVES: To analyze the concept of

SIGNIFICANECE OF THE INTERPRETATION CLAUSE through the study of
various eminent corporate works on shares related to the said topic.
1.To define and to understand the concept of Interpretation and its principle.

2. To know about the definition and meaning of Interpretation.

3. Lastly, to analyze the project in totality and address the expansive

significance of the interpretation clause.

RESEARCH QUESTIONS

• Q1- What are the principle of interpretation?

• Q2- What is the right to reason of needs of Interpretation?

• Q3- What is the principle of pith and substance?

• Q4- What do you know about article 367?

RESEARCH METHOD

Present project work is based on doctrinal research. The data has been collected
through secondary sources such as books, articles, journals and internet.

MODE OF CITATION

A UNIFORM CODE OF CITATION HAS BEEN FOLLOWED.

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 CHAPTER=1
1.1 Introduction:
Enacted laws, especially the modern acts and rules, are drafted by legal experts
and it could be expected that the language used will leave little room for
interpretation or construction. But the experience of all those who have to bear
and share the task of application of the law has been different. Interpretation
means the art of finding out the true sense of enactment by giving the words of
the enactment their natural and ordinary meaning. It is the process of
ascertaining the true meaning of the words used in a statute. The Court is not
expected to interpret arbitrarily and therefore there have been certain principles
which have evolved out of the continuous exercise by the Courts. These
principles are sometimes called ‘rules of interpretation’.
The object of interpretation of statutes is to determine the intention of the
legislature conveyed expressly or impliedly in the language used. As stated by
SALMOND, “by interpretation or construction is meant, the process by which
the courts seek to ascertain the meaning of the legislature through the medium
of authoritative forms in which it is expressed. “Elaborate rules of interpretation
were evolved even at a very early stage of Hindu civilization and culture. The
rules given by ‘Jaimini’, the author of Mimamsat Sutras, originally meant for
srutis were employed for the interpretation of Smritis also. In the process of
interpretation, several aids are used. They may be statutory or non-statutory.
Statutory aids may be illustrated by the General Clauses Act, 1897 and by
specific definitions contained in individuals Acts whereas non-statutory aids are
illustrated by common law rules of interpretation (including certain
presumptions relating to interpretation) and also by case-laws relating to the
interpretation of statutes.
1.2 Meaning and Definition of Interpretation
According to Salmond interpretation or construction is the process by which the
courts seek to ascertain the meaning of the legislature through the medium of
authoritative forms in which it is expressed.”  It has been said that there is a
distinction between the two expressions. As explained by Cooley:
“Interpretation differs from construction in the sense that the former is the art of
finding out the true sense of any form of words; i.e. the sense that their author
intended to convey. Construction on the other hand, is the drawing of
conclusions, respecting the subjects that lie beyond the direct expression of the

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text. This distinction has been widely criticized. Interpretation of statute is the
process of ascertaining the true meaning of the words used in a statute. When
the language of the statute is clear, there is no need for the rules of
interpretation. But, in certain cases, more than one meaning may be derived
from the same word or sentence. It is, therefore, necessary to interpret the
statute to find out the real intention of the statute.

CHAPTER=2

2.1 Interpretation of Statutes is required for two basic reasons: -

1. Legislative Language – Legislative language may be complicated for a
layman, and hence may require interpretation; and
2. Legislative Intent – The intention of the legislature or Legislative intent
assimilates two aspects: a. the concept of ‘meaning’, i.e., what the word
means; and b. the concept of ‘purpose’ and ‘object’ or the ‘reason’ or
‘spirit’ pervading through the statute.
2.2 Some Important Points to be taken care of in the context of interpreting
Statutes:
 The intention of the legislature.
 The statute must be read as a whole in its Context.
 The statute should be construed so as to make it Effective and Workable – if
a statutory provision is ambiguous and capable of various constructions,
then that construction must be adopted which will give meaning and effect
to the other provisions of the enactment rather than that which will give
none.
 If meaning is plain, the effect must be given to it irrespective of
consequences.
 The process of construction combines both literal and purposive
approaches. The purposive construction rule highlights that you should
shift from literal construction when it leads to absurdity.
 Text as phase one:
In its early years, the Supreme Court adopted a textualist approach, focusing
on the plain meaning of the words used in the Constitution. A.K. Gopalan v.
State of Madras (1950) was one of the early decisions in which the Court
was called upon to interpret the fundamental rights under Part III. The leader

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 of the Communist Party of India claimed that preventive detention
legislation under which he was detained was inconsistent with Articles 19
(the right to freedom), 21 (the right to life) and 22 (the protection against
arbitrary arrest and detention). The Supreme Court decided that each of those
articles covered entirely different subject matter, and were to be read as
separate codes rather than being read together.
Amongst the most controversial questions in Indian constitutional law has
been whether there are any limitations on Parliament’s power to amend the
Constitution, especially fundamental rights. In its early years, the Court
read the Constitution literally, concluding that there were no such
limitations.
 Phase two, the structure
In the second phase, the Supreme Court began exploring other methods of
interpretation. Appeals to the text of the Constitution were gradually overtaken
by appeals to the Constitution’s overall structure and coherence. In the leading
case of Kesavananda Bharati v. State of Kerala (1973), the Court concluded
that Parliament’s power to amend the Constitution did not extend to altering
its “basic structure” — an open-ended catalogue of features that lies within the
exclusive control of the Court. When Parliament attempted to overturn this
decision by amending the Constitution yet again, the Court, relying on
structuralist justifications, decisively rejected that attempt.
In this phase, the Court also categorically rejected the Gopalan approach in
favour of a structuralist one in Maneka Gandhi v. Union of India (1978).
Through this decision, the Court conceived of the fundamental rights as a
cohesive bill of rights rather than a miscellaneous grouping of constitutional
guarantees. The right to life was incrementally interpreted to include a wide
range of rights such as clean air, speedy trial, and free legal aid. This paved the
way for the Supreme Court to play an unprecedented role in the governance of
the nation.
What was common between the first two phases of the interpretive story was
that significant decisions involving the interpretation of the Constitution were
entrusted to Constitution Benches (comprising five or more judges of court) and
were carefully (even if incorrectly) reasoned. There was limited scope for
precedential confusion, since matters which had been decided by Constitution
Benches and which demanded reconsideration were referred to larger
Constitution Benches.

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  Eclecticism as phase three
The Constitution must be interpreted in the light of the present scenario. The
situation and circumstances prevalent today must be considered. In the third
phase, the Supreme Court’s interpretive philosophy turned far more result-
oriented than it had ever been. The Court often surrendered its responsibility of
engaging in a thorough rights reasoning of the issues before it. Two factors
underpinned this institutional failure. First, the changing structure of the Court,
which at its inception began with eight judges, grew to a sanctioned strength of
31; it is currently 34. It began to sit in panels of two or three judges, effectively
transforming it into a “polyvocal” group of about a dozen sub-Supreme Courts.
Second, the Court began deciding cases based on a certain conception of its own
role — whether as sentinel of democracy or protector of the market economy.
This unique decision-making process sidelined reason-giving in preference to
arriving at outcomes that match the Court’s perception.
The failure to give reasons contributed not only to methodological incoherence
but also to serious doctrinal incoherence and inconsistency across the law. This
can be best described as panchayati eclecticism, with different Benches
adopting inconsistent interpretive approaches based on their conception of the
Court’s role, and arriving at conclusions that were often in tension with one
another. The imagery that panchayati eclecticism is meant to invoke is that of a
group of wise men and women (applying the analogy, sub-Supreme Courts),
taking decisions based on notions of fairness that are detached from precedent,
doctrine and established interpretive methods.

 Phase four, purpose

We are currently in the midst of transitioning from the third phase of

constitutional interpretation to the fourth. In the fourth phase, the Court has
acknowledged as critical to its interpretive exercise the purpose for which the
Constitution has been enacted. Many Constitutions attempt the task of
entrenching a political compromise between the incumbents and challengers of
the day. India’s Constitution, at its very inception, was different. In enacting the
Constitution, the founders of our Republic expressed a sense of unease with the
status quo and raised expectations of root-and-branch social revolution and
transformation. The Court is now beginning to interpret the Constitution in
accordance with its revolutionary and transformative potential.

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With about a dozen significant Constitution Bench decisions from the Supreme
Court since September 2018, there has been a renaissance in decision-making
by Constitution Benches. This includes the Court’s decisions striking down
Section 377 and the criminal offence of adultery, and including the office of the
Chief Justice of India within the scope of the Right to Information Act.

However, facets of phase 3 continue to linger on in the courts. Cases that

involve substantial questions of interpretation of the Constitution — such as the
cases concerning the National Register of Citizens and the electoral bonds
scheme — are still being adjudicated upon by benches of two or three judges.
There remains a latent risk, therefore, that the gains made in the early days of
phase four could be lost, and we could slide back to panchayati adjudication
once again.

2.3Types of interpretation:

 Historical interpretation
Ambiguities and uncertainties while interpreting the constitutional provisions
can be clarified by referring to earlier interpretative decisions.

 Contemporary interpretation
The Constitution must be interpreted in the light of the present scenario. The
situation and circumstances prevalent today must be considered.
 Harmonious Construction
It is a cardinal rule of construction that when there are in a statute two
provisions which are in such conflict with each other, that both of them cannot
stand together, they should possibly be so interpreted that effect can be given to
both. And that a construction which renders either of them inoperative and
useless should not be adopted except in the last resort.

The Supreme Court held in Re Kerala Education Bill that in deciding the
fundamental rights, the court must consider the directive principles and adopt
the principle of harmonious construction so two possibilities are given effect as
much as possible by striking a balance.
In Qureshi v. State of Bihar, The Supreme Court held that while the state should
implement the directive principles, it should be done in such a way so as not to
violate the fundamental rights.

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In Bhatia International v Bulk trading it was held that if more than one
interpretation is possible for a statute, then the court has to choose the
interpretation which depicts the intention of the legislature.
Interpretation of the preamble of the Constitution
The preamble cannot override the provisions of the constitution. In Re
Berubari, the Supreme Court held that the Preamble was not a part of the
constitution and therefore it could not be regarded as a source of any substantive
power.
In Keshavananda Bharati’s case, the Supreme Court rejected the above view
and held the preamble to be a part of the constitution. The constitution must be
read in the light of the preamble. The preamble could be used for the
amendment power of the parliament under Art.368 but basic elements cannot be
amended.
The 42nd Amendment has inserted the words “Secularism, Socialism, and
Integrity” in the preamble.

2.4 General rules of interpretation of the Constitution

1. If the words are clear and unambiguous, they must be given the full
effect.
2. The constitution must be read as a whole.
3. Principles of harmonious construction must be applied.
4. The Constitution must be interpreted in a broad and literal sense.
5. The court has to infer the spirit of the Constitution from the language.
6. Internal and External aids may be used while interpreting.
7. The Constitution prevails over other statutes.
Principles of Constitutional Interpretation
The following principles have frequently been discussed by the courts while
interpreting the Constitution:

1. Principle of colourable legislation

2. Principle of pith and substance
3. Principle of eclipse
4. Principle of Severability
5. Principle of territorial nexus
6. Principle of implied powers
Principle of Colorable Legislation
The doctrine of colourability is the idea that when the legislature wants to do
something that it cannot do within the constraints of the constitution, it colours
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the law with a substitute purpose which will still allow it to accomplish its
original goal.

Maxim: “Quando aliquid prohibetur ex directo, prohibetur et per

obliqum” which means what cannot be done directly cannot also be done
indirectly.
The rule relates to the question of legislative competence to enact a law.
Colourable Legislation does not involve the question of bonafides or malfides.
A legislative transgression may be patent, manifest or direct or may be
disguised, covert or indirect. It is also applied to the fraud of Constitution.In
India ‘the doctrine of colourable legislation’ signifies only a limitation of the
law-making power of the legislature. It comes into picture while the legislature
purporting to act within its power but in reality, it has transgressed those
powers. So the doctrine becomes applicable whenever legislation seeks to do in
an indirect manner what it cannot do directly. If the impugned legislation falls
within the competence of legislature, the question of doing something indirectly
which cannot be done directly does not arise. In our Constitution, this doctrine
is usually applied to Article 246 which has demarcated the Legislative
competence of the Parliament and the State Legislative Assemblies by outlining
the different subjects under list I for the Union, List II for the States and List III
for the both as mentioned in the seventh schedule.

This doctrine comes into play when a legislature does not possess the power to
make law upon a particular subject but nonetheless indirectly makes one. By
applying this principle, the fate of the Impugned Legislation is decided.

Principle of pith and substance

Pith means ‘true nature’ or essence of something’ and substance means ‘the
most important or essential part of something’. The basic purpose of this
doctrine is to determine under which head of power or field i.e. under which list
(given in the seventh schedule) a given piece of legislation falls.Union & State
Legislatures are supreme within their respective fields. They should not
encroach/ trespass into the field reserved to the other. If a law passed by one
trespass upon the field assigned to the other—the Court by applying Pith &
Substance doctrine, resolve the difficulty &declare whether the legislature
concerned was competent to make the law.If the pith & substance of the law
(i.e. the true object of the legislation) relates to a matter within the competence
of the legislature which enacted it, it should be held intra vires—though the

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legislature might incidentally trespass into matters, not within its competence.
The true character of the legislation can be ascertained by having regard—to the
enactment as a whole — to its object – to the scope and effect of its provisions.

Case: State of Bombay v. FN Balsara

Bombay Prohibition Act, 1949 which prohibited sale & possession of liquors in
the State, was challenged on the ground that it incidentally encroached upon
Imports & Exports of liquors across custom frontier – a Central subject. It was
contended that the prohibition, purchase, use, possession, and sale of liquor will
affect its import. The court held that act valid because the pith & substance fell
under Entry 8 of State List and not under Entry 41 of Union List.

Principle of eclipse
The Doctrine of Eclipse says that any law inconsistent with Fundamental
Rights is not invalid. It is not dead totally but overshadowed by the fundamental
right. The inconsistency (conflict) can be removed by a constitutional
amendment to the relevant fundamental right so that eclipse vanishes and the
entire law becomes valid.All laws in force in India before the commencement of
the Constitution shall be void in so far they are inconsistent with the provisions
of the Constitution. Any law existing before the commencement of the
Constitution and inconsistent with the provision of Constitution becomes
inoperative on commencement of Constitution. But the law does not become
dead. The law remains a valid law in order to determine any question of law
incurred before the commencement of the Constitution.  An existing law only
becomes eclipsed to the extent it comes under the shadow of the FR.

Case:  Keshavan Madhava Menon v. The State of Bombay

In this case, the law in question was an existing law at the time when the
Constitution came into force. That existing law imposed on the exercise of the
right guaranteed to the citizens of India by article 19(1)(g) restrictions which
could not be justified as reasonable under clause (6) as it then stood and
consequently under article 13(1)[8] that existing law became void “to the extent
of such inconsistency”.
The court said that the law became void not in to or for all purposes or for all
times or for all persons but only “to the extent of such inconsistency”, that is to
say, to the extent it became inconsistent with the provisions of Part III which
conferred the fundamental rights of the citizens.Thus the Doctrine of Eclipse
provides for the validation of Pre-Constitution Laws that violate fundamental
rights upon the premise that such laws are not null and void ab initio but
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become unenforceable only to the extent of such inconsistency with the
fundamental rights. If any subsequent amendment to the Constitution removes
the inconsistency or the conflict of the existing law with the fundamental rights,
then the Eclipse vanishes and that particular law again becomes active again.
Principle of Severability
The doctrine of severability provides that if an enactment cannot be saved by
construing it consistent with its constitutionality, it may be seen whether it can
be partly saved. Article 13 of the Constitution of India provides for Doctrine of
severability which states that-All laws in force in India before the
commencement of Constitution shall be void in so far they are inconsistent with
the provisions of the Constitution.The State shall not make any law which takes
away/ shortens the rights conferred by Part III of the Constitution i.e.
Fundamental Rights. Any law made in contravention of the provisions of the
Constitution shall be void and invalid. The invalid part shall be severed and
declared invalid if it is really severable. (That is, if the part which is not severed
can meaningfully exist without the severed part.) Sometimes the valid and
invalid parts of the Act are so mixed up that they cannot be separated from each
other. In such cases, the entire Act will be invalid.

Case: AK Gopalan v. State of Madras

In this case, the Supreme Court said that in case of repugnancy to the
Constitution, only the repugnant provision of the impugned Act will be void and
not the whole of it, and every attempt should be made to save as much as
possible of the Act. If the omission of the invalid part will not change the nature
or the structure of the object of the legislature, it is severable. It was held that
except Section 14 all other sections of the Preventive Detention Act, 1950 were
valid, and since Section 14 could be severed from the rest of the Act, the
detention of the petitioner was not illegal.

Principle of Territorial Nexus

Article 245 (2) of the Constitution of India makes it amply clear that ‘No law
made by Parliament shall be deemed to be invalid on the ground that it would
have extra-territorial operation’. Thus a legislation cannot be questioned on the
ground that it has extra-territorial operation. It is well-established that the
Courts of our country must enforce the law with the machinery available to
them, and they are not entitled to question the authority of the Legislature in
making a law which is extra-territorial. The extra-territorial operation does not

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invalidate a law. But some nexus with India may still be necessary in some of
the cases such as those involving taxation statutes.

The Doctrine of Territorial Nexus can be invoked under the following

circumstances-

 Whether a particular state has extra-territorial operation.

 If there is a territorial nexus between the subject- matter of the Act and
the state making the law
It signifies that the object to which the law applies need not be physically
located within the territorial boundaries of the state, but must have a sufficient
territorial connection with the state. A state may levy a tax on a person,
property, object or transaction not only when it is situated within its territorial
limits, but also when it has a sufficient and real territorial connection with it.
Nexus test was applied to the state legislation also

Case: Tata Iron & Steel Company v. Bihar State 

The State of Bihar passed a Sales Tax Act for levy of sales tax whether the sale
was concluded within the state or outside if the goods were produced, found and
manufactured in the state. The court held there was sufficient territorial nexus
and upheld the Act as valid. Whether there is sufficient nexus between the law
and the object sought to be taxed will depend upon the facts and circumstances
of a particular case.It was pointed out that sufficiency of the territorial
connection involved a consideration of two elements- a) the connection must be
real and not illusory b) the liability sought to be imposed must be pertinent to
that connection.

Principle of Implied powers

Laws which are necessary and proper for the execution of the power or
incidental to such power are called implied powers and these laws are presumed
to be constitutional. In other words, constitutional powers are granted in general
terms out of which implied powers must necessarily arise. Likewise,
constitutional restraints are put in general terms out of which implied restraints
must also necessarily establish.This is a Legal principle which states that, in
general, the rights and duties of a legislative body or organization are
determined from its functions and purposes as specified in its constitution or
charter and developed in practice

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2.5 Article 367 in The Constitution Of India 1949

367. Interpretation
(1) Unless the context otherwise requires, the General Clauses Act, 1897 , shall,
subject to any adaptations and modifications that may be made therein under
Article 372, apply for the interpretation of this Constitution as it applies for the
interpretation of an Act of the Legislature of the Dominion of India
(2) Any reference in this Constitution to Acts or laws of, or made by,
Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be
construed as including a reference to an Ordinance made by the President or, to
an Ordinance made by a Governor, as the case may be
(3) For the purposes of this Constitution foreign State means any State other
than India: Provided that, subject to the provisions of any law made by
Parliament, the President may by order declare any State not to be a foreign
State for such purposes as may be specified in the order.

understand the legal provisions and history. Article 370 was included in the
Indian Constitution as a temporary provision for J&K. Articles 370(1)(c) and
370(1)(d) (which are relevant) deal with the applicability of the Indian
Constitution to J&K. Article 370(1)(c) states that Article 1 and Article 370 of
the Constitution shall apply to J&K. Article 370(1)(d) states that other
provisions of the Constitution can be made applicable to J&K with such
“modifications as the President may by order specify”.
However Article 370(1)(d) requires that the President secure the concurrence of
the J&K government before issuing such an order. Finally, Article 370(3) states
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that the President can issue a notification making the whole of Article 370
inoperative if such a recommendation is made to the President by the
Constituent Assembly of J&K.
Article 370 was brought into being as a compromise. When Kashmir acceded to
India, Kashmir was given the right to draft its own Constitution. All princely
states were given this right but other states accepted the Indian Constitution as
being applicable to themselves. Kashmir however constituted its own
Constituent Assembly and reserved for itself the right to make its own laws on
all but a few matters. Article 370 gives constitutional effect to this
understanding.
However Article 370 was intended to be temporary until Kashmir’s Constitution
was drafted and the Constituent Assembly of Kashmir has the power to
recommend the abrogation of Article 370 to the President. The Constituent
Assembly of Kashmir however dissolved itself in 1957 without making any
recommendation for amendment or abrogation and for this reason, the Indian
Supreme Court has ruled on multiple occasions that Article 370 is now a
permanent part of the Indian Constitution since the only body that could have
abrogated it has been dissolved without doing so.
This is the principal difficulty that the government has to overcome in order to
successfully ‘scrap’ Article 370 in its entirety.
Let us now understand what the Indian government did on Monday.
First, the Presidential Order was issued. The Presidential Order uses Article
370(1)(d) to apply all provisions of the Indian Constitution (other than Articles
1 and 370 – which are already applicable) to J&K. The concurrence of J&K
government is necessary to effect such a step but since J&K is presently under
President’s rule and has no state government, this was effectively dispensed
with.
Second, when applying provisions of the Indian Constitution to J&K, the
President effected one ‘modification’— to Article 367. Article 367 is the
interpretation clause of the Constitution. In Article 367, the Presidential Order
inserts a new sub-clause (4)(d) which states that the words “Constituent
Assembly” in Article 370(3) must be read as “Legislative Assembly of the State”.
What does this mean? The government has sought to overcome the problem of
the Constituent Assembly not having abrogated Article 370 by requiring that
“Constituent Assembly” in Article 370(3) be read as the J&K Assembly.

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By doing so, it now becomes possible for the J&K Assembly to do what the
Constituent Assembly did not i.e. recommend the abrogation of Article 370. To
be clear, the President has not amended Article 370(3) itself because he does not
have the power to do so. He can only modify other provisions of the
Constitution when making them applicable to J&K.
Third, applying this new interpretation of Article 370(3), the President could
have abrogated Article 370 upon a recommendation to this effect being made by
the J&K Assembly. But since J&K is now a Union Territory and is under
President’s rule and has no legislative assembly at the moment, it fell upon
Parliament to make this recommendation under the newly ‘modified’ Article
370(3). Accordingly, the recommendation to the President abrogate Article 370
was issued by the Home Minister through his Resolution.
Through these three steps, the government calculates that it has finally paved
the way for scrapping of Article 370. Were alternatives available? Yes, but
these would either have required the concurrence of J&K’s properly elected
representatives or a two-third majority in Parliament to effect constitutional
amendments. The government calculated it would not be able to achieve either.
Hence this bit of jugglery.
The government’s action is, from a legal standpoint, clever. But is it perhaps a
bit too clever? It appears so for four reasons.
First, the President does not have the power to modify Article 370 itself. But
that is precisely what the Presidential order purports to do indirectly. Article
370 is already applicable to J&K under Article 370(1)(c). Under Article 370(1)
(d) the President’s has the power to modify and apply other provisions of the
Constitution to J&K i.e. provisions other than Article 370.
By modifying Article 367 (as it applies to J&K) and requiring that ‘Constituent
Assembly’ in Article 370(3) be read as the J&K Assembly, the President has
attempted to indirectly amend Article 370. Therefore the Indian Constitution as
it is applicable to J&K today now has two provisions that say contradictory
things. Article 370(3) says that the Constituent Assembly of J&K can
recommend the abrogation of Article 370. Article 367(4)(d) says that
Constituent Assembly must be read to mean J&K Assembly. Which provision
prevails? This is where the government is likely to encounter problems:

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The Presidential Order is tantamount to the President doing indirectly what he
cannot do directly i.e. amending Article 370 through Article 367 because he has
no power to amend Article 370 directly. This is problematic.
The President has exceeded the confines of the power delegated to him under
Article 370(1)(d). He cannot do so. This was settled in the Keshavananda
Bharati case which established the Basic Structure doctrine i.e. a constitutional
functionary cannot use the powers given to him under the Constitution to do to
the Constitution that which the Constitution never intended for him to do.
Multiple Supreme Court decisions have established that Article 370 is a
permanent provision precisely because the Constituent Assembly of Kashmir
dissolved itself without making such a recommendation.
The law recognises acts of omission (in this case, not recommending the
abrogation of Article 370). That is to say that by dissolving itself without
recommending abrogation, the Constituent Assembly of J&K made clear its
intention to not abrogate Article 370.
Finally, principles of statutory interpretation require that the meaning of a
provision must be derived from its own wording unless it is unclear. An
interpretation clause cannot override the clear meaning of the actual provision
i.e. Article 367(4)(d) cannot override Article 370(3).
Second, Article 370(1)(d) only empowers the President to modify existing
provisions of the Constitution when they are made applicable to J&K. The
Presidential Notification however adds a fresh provision to the Constitution in
the form of Article 367(4). The President’s power to legislate provisions into
the Constitution in this manner is suspect.
Third, the Presidential Order is also problematic because J&K is currently under
President’s Rule. The requirement of obtaining the concurrence of the J&K
Assembly was therefore dispensed with. Can a decision such as this one be
taken by the President himself relying on the imposition of President’s Rule in a
State? Is that a breach of India’s commitment to federalism? This is also up for
debate.
Fourth, the Presidential Order may also run into trouble because (while the
President may have modified Article 367(4)(d) as it is applicable to J&K) a
similar amendment has not been made either to Article 367(4)(d) or Article
370(3) of the Indian Constitution itself by Parliament. The President’s power to
modify the Indian Constitution under Article 370(1)(d) is only limited to J&K.
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The power to amend the Constitution vests exclusively with Parliament.
Currently therefore, the Constitution as it is applicable to J&K contains Article
367(4)(d) which requires ‘Constituent Assembly’ in Article 370(3) to be read as
the J&K Assembly but this is only applicable to J&K.
Absent is a Parliamentary amendment to this effect, even if the President
intends to act on the recommendation of the J&K Assembly (issued through the
Home Minister’s Resolution) he is bound by his oath of office to uphold the
Indian Constitution as it stands today and the Constitution as it stands today
(except in the case of J&K) does not contain either Article 367(4)(d) or an
amended version of Article 370(3). The President’s power to act on the
recommendation contained in the Home Minister’s Resolution is therefore
suspect.
For these reasons, unless the President (and by extension, the government) is
confident that the Supreme Court’s view will change when the Presidential
order is challenged, a formal amendment to Article 367 or Article 370(3) would
strengthen the President’s hand as and when he does issue a notification to
abrogate Article 370. Voting for the J&K bifurcation bill suggests that the
government will not find it hard to push through these constitutional
amendments with a two-third majority in Parliament.
The abrogation of Article 370 was a historical promise. Prime Minister Nehru
himself agreed that Article 370 would be rendered obsolete by the passage of
time. The abrogation move may bolster the government’s ability to make the
fruits of India’s economic progress directly available to Kashmir. Yet, the
manner in which this has been done is unlikely to inspire trust in the ordinary
Kashmir and may well cause lasting damage to the tradition of constitutional
propriety.

CONCLUSION
The Constitution of India came into force 70 years ago, on January 26, 1950.
The enactment of the Constitution was an ambitious political experiment —
with universal adult franchise, federalism in a region consisting of over 550
princely States, and social revolution in a deeply unequal society. However, it
was equally a unique achievement in terms of constitutional design. Republic
Day, especially this year, therefore provides us an opportunity to take a step

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back from political contestations about the Constitution and consider how the
text has been interpreted by the courts over the last seven decades.

BIBLIOGRAPHY

BOOK:

1.Intrepretation of Statue by prof. T Bhattacharya (2nd edition)

WEBSITE:

1. https://www.lawskills.in/ResourceDetails/11/right-to-life--scope-in-india
2. https://lawcorner.in/article-21-an-interpretation/
3. http://www.legalservicesindia.com/law/article/1105/10/Judicial-
Interpretation-in-Right-to-Life-Personal-Liberty--of-Indian-Constitution

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