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RE- ARTICLE 370: CASE COMMENT ON ABROGATION OF SPECIAL STATUS OF JAMMU AND KASHMIR.
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RE- ARTICLE 370: CASE COMMENT ON ABROGATION
OF SPECIAL STATUS OF JAMMU AND KASHMIR.
AUTHORED BY - GOURI C V
Third Year, BALLB, Kerala Law Academy
Law College
INTRODUCTION
The tale of Jammu Kashmir, famed as
paradise on earth, is written out of bloodshed and gunpowder. Even after the accession
of the state of Jammu & Kasmir(J&K) to the Union of India it continued
as a conflicting fault-line in both domestic and international sphere. Jammu
Kashmir (Reorganisation) Act, 2019 and Constitutional Orders 272 and 273 have
redefined the existence of J&K in a novel fashion. The legislative decision
was widely criticised and the debates that followed were deeply controversial.
The constitutional bench of hon’ble Supreme Court of India has recently upheld
the abrogation of Article 370 unanimously. [1]
The verdict is not a mere judicial settlement of the matter but a meticulous
exploration of the historic and constitutional journey of J&K and therefore
calls for an assiduous examination.
BACKGROUND
Jammu and Kashmir emerged as a
princely state, coming under the suzerainty of the British East India Company
from 1846 onward through a subsidiary alliance.[2] During
the departure of the British from India, they left open to the princely states
with an option either to join Indian Union or Pakistan or to stay independent.[3] State
of J&K chose to stay independent. In 1947, J&K's Maharaja Hari Singh requested aid against
infiltration, leading to accession to India on 26 October 1947. By March 5,
1948, an interim government was established for framing the state's constitution.
The White paper on States 1951 states that legally and constitutionally the
position of the state would be the same as that of other acceding states.[4]
However, considering the peculiar situation in the state and also to ensure
democratic participation in the final determination of the state’s political
future, the provisions of Article 370 were introduced.[5] Constituent
assembly of J&K was convened on 31 October 1951 and the Constitution of J&K
came into effect on 26 January 1957.
The contemporary socio-political
scenario of J&K is also relevant in understanding the legislative decision
of parliament. Following the resignation of Chief Minister Mehbooba Mufti on 19
June 2018 owing to the withdrawal of support by BJP from the coalition with People’s
Democratic Party(PDP), J&K Governor had invoked emergency under Section 92
of the Constitution of J&K pointing out the failure of constitutional
machinery. The proclamation required concurrence of the President[6]
and could only be exercised for six months.[7] On
21 November 2018 the Governor dissolved the legislative assembly of J&K
exercising the power under Section 53(2) of Constitution of J&K President’s
rule was evoked in the state on 19 December 2018 and it was further extended
for six more months on 03 July 2019.
On August 5, 2019, the President
issued ‘Constitution (Application to Jammu and Kashmir) Order 272 changing the
recommending body in Article 370. On 06 August 2019 Jammu and Kashmir
Reorganisation Act, 2019 was passed bifurcating the State of J&K into two
Union Territories. On the same day pursuant to the recommendation by Lok Sabha,
the president issued CO 273 by which Article 370 ceased to apply with effect
from 9 August 2019. On 09 August 2019 the Union Ministry of Home Affairs issued
a notification S.O. 2889E in exercise of the powers conferred by Section 2(a)
of the Reorganisation Act bringing the provisions to the act into force with
effect from 31 October 2019.
On 19 August 2019 invoking Article 32,
a batch of petitions challenged the constitutional validity of CO 272, 273,
J&K Reorganisation Act,2019 and ultimately the revocation of Article 370
before the hon’ble Supreme Court of India.
SUBMISSIONS OF THE PETITIONERS
The petitioners initially challenged
the Governor's proclamation under Section 92 of the Jammu and Kashmir
Constitution, claiming it to be invalid as it is a mere political tactic aimed
at ultimately invalidating Article 370. [8]
They argued that no opportunity was afforded to the other parties to
demonstrate strength in the house. The Governor’s report showing the failure of
constitutional machinery was not placed before the parliament[9]
and the proclamation was approved without debate[10]. Unilateral
exercise of power would render the federal structure susceptible to the whims
of the political parties in power.[11] The
Parliament cannot make irreversible changes in the exercise of this temporary
power during the Proclamation under Article 356.[12] Article
356 does not involve a delegation of constituent power to the President or
Parliament. The President's ordinance-making power, despite a deeming
provision, is not constitutionally equivalent to ordinary legislative power.[13]
Asymmetric federalism, involving
distinct rights for specific federal sub-units, is integral to the Indian
federal scheme and constitutes a fundamental aspect of the basic structure.[14] The
absence of a merger agreement between the Maharaja or successors and the Union
of India allows the state to retain residual sovereignty, acknowledged through
the inclusion of Article 370 in the Indian Constitution.[15] The
word ‘temporary’ in the marginal note, implies that unless the specific
conditions of its repeal, that is, convening of the Constituent Assembly of the
State of J&K cannot be secured, the Article will continue to operate
irrespective of the duration of time.[16] Maharaja
of J&K retained the residual sovereignty as per Clause 8 of the Instrument.
[17] Article
370 contains a provision for its own amendment in Article 370(3). [18] When such a specific provision exists, the
amendment cannot be done in any other manner. [19]
CO 272 and CO 273 are
unconstitutional The Jammu and Kashmir Reorganisation Act, 2019 was argued to
have the effect of suspending the will of the people since the proviso to
Article 3, which requires consideration of recommendations from the state
legislature was not complied. [20] The
reduction of the state of J&K into a union territory would create a
situation where the citizens of the state may find themselves living in a new
state and this diminishes the representative democracy.[21]
The power under Article 3 cannot be used by parliament to create a ‘Union of
Union territories’.[22]
SUBMISSIONS OF THE RESPONDENTS
The Respondents submitted
that the new step does not infringe asymmetrical federalism or any other
features of representative democracy. This is not an arbitrary act because the
abrogation of Article 370 brings the residents of J&K at par with the
citizens residing in the rest of the country and confers them with all the
rights flowing from the entire constitution as well as hundreds of beneficial
legislations.[23]
Once the State
Constituent Assembly ceased to exist, the proviso to Article 370(3) itself
ceases to exist and the President becomes the sole repository of powers under
Article 370(3). Treating the absence of the Constituent Assembly in the proviso
of Article 370 as rendering the President's power meaningless would open the
door for potential elevation of Article 370 above the fundamental principles of
the Constitution. The limited role envisaged to the constituent assembly was
only to make a recommendation, which is not even binding upon the president.[24] Parliament,
as the democratic repository of the entire nation, is the apt constitutional
authority to address matters concerning the relationships among federal units,
as it pertains to all states in the federal setup.[25] The
President's authority under Article 370(3) is unrestricted, as the article
commences with a non-obstante clause stating "notwithstanding anything in
the Constitution of India," and the sub-clause itself begins with a
similar provision, making the President's exercise of powers independent of
other constitutional provisions, including those within Article 370. Unlike
Indian constitution the preamble of constitution of J&K neither establishes
sovereignty nor does it claim to do so.[26]
The power of parliament under Article 3 is a plenary power which may be
exercised during the sustenance of president’s rule and hence the term
‘modification’ in Article 370(1) cannot be interpreted in a narrow manner and
therefore the addition of clause (4) to article 367 by CO 272 is valid.[27]
ANALYSIS OF
JUDGEMENT
A) ON THE MATTER OF SOVEREIGNITY
After an elaborate
discussion on the history of J&K from Maharaja Gulab Singh of Jammu to the
last ruler Maharaja Hari Singh, the court affirmed that Paragraph 8 of IoA had stipulated
that it would not impede the ongoing sovereignty of the Maharaja within the
State, nor would it hinder the exercise of any powers, authority, or rights he
held as a Ruler, except as explicitly outlined in the Instrument. However, the
White paper on States of 1951 provides that all the merged entities have lost
all vestiges of existence as separate entities. The hon’ble Supreme court
emphasised on a note prepared by the ministry of states in July 1949 in which
it specifically noted that the special provision is merely a transitional
agreement and could be brought to the level of other states as and when
required.[28]
Therefore the court concluded that the special provision is not indicative of
the fact that it retained an element of sovereignty. Rather, it was
necessitated by the conditions in the State at the time and was intended to
continue until the State could be brought on par with other States. The
proclamation made by Yuvraj Singh of Jammu on 25 November 1949 reflects the
full and final surrender of sovereignty by J&K, through its sovereign ruler,
to India – to her people who are sovereign.[29]
The constitution of
J&K was not adopted independently of the Union of India but only to further
define the relationship between the two which has already been defined by the
IoA and Proclamation issued by Yuvarj Karan Singh in November 1949 and more importantly
by the constitution of India.[30]
In the debates of the constituent assembly of J&K Shri Kushuk Bakula[31],
Kotwal Chuni Lal[32], Isher
Devi Mani[33] and GM
Sadiq[34]
reiterated that J&K is an integral part of Union of India. Section 5[35]
however recognises that the legislative domain of Parliament in relation to the
State of J&K would be prescribed by the Constitution of India. The special
arrangement of different states including J&K is nothing but a feature of
asymmetric federalism and it is not internal sovereignty.[36] The power of state legislative assembly to
amend the constitution is restricted and therefore vesting residual legislative
powers cannot be equated to residual sovereignty.[37]
B) LIMITATIONS ON EXERCISE OF POWER UNDER ARTICLE 356
It was settled by the hon’ble
Supreme court before that Article 356 must be interpreted with reference to the
marginal note, that is, failure of constitutional machinery in the state.[38]
Relying upon State of Rajasthan v Union of India[39]
the court held that the Governor's actions under Article 356 can be preventive
or curative, reminding the obligation of Union Government under Article 355 to
ensure that state governance aligns with the Constitution. Implicit in Article
356(1)(b) is the power to dissolve the State legislature.
The hon’ble court relying
on SR Bommai case[40]
undertook a textual and purposive reading of Article 356 and part XVIII. The
suspension of the state government is a necessary consequence of proclamation
under Article 356. However, the exercise of the power by the president must be
‘desirable or necessary’, i.e., legislative and executive actions which are
taken during the subsistence of a Proclamation must bear a proximate
relationship with the need to discharge the exigencies of governance during the
period over which the Proclamation continues to remain in force in the state. Judicial
review of a Proclamation is limited to mala fides or extraneous considerations.
After the petitioner makes a prima facie case the onus shifts to the union
government.[41]
Moreover exercise of Article 356 cannot be challenged on the ground that it has
given rise to irreversible consequences.[42] Routine
state administration by the President is generally not subject to judicial
review.
C) ARTICLE 370: A TEMPORARY PROVISION?
In clarifying the scope
of 370[43] Shri
N Gopalaswami Ayyangar unambiguously explained the temporary status of the
provision which the president may declare inoperative later on.[44] The
functions of the Dominion Authorities including the legislature in J&K were
limited solely by the provisions of the Constitution of India.[45] Article
370 is placed in the part temporary or transitional provisions. The articles
were designed to be temporary either with reference to time or occurrence of an
event. The provisions were transitional so as to facilitate the effortless transfer
of power. The temporary and transitional provisions were gradually phased out
after the commencement of the Constitution, by repeal.
The provisions of Article
370(1)(c) made it clear that J&K was governed by Article 1. The necessary
consequence of the provision is that it is an integral part of the territory of
India.[46]
Any interpretation of Article 370 cannot postulate that the integration of J&K
with India was temporary.[47] Article
370(3) was introduced with the purpose of enhancing constitutional integration
and not disintegration. Under Clause (3), the President also has the power to
modify Article 370 which includes the power of the President to remove the
distinction between matters in the IoA and to apply all provisions of the
Constitution to the State of J&K.[48]
D) CHALLENGE TO CONSTITUTIONAL ORDER
272 AND 273
CO 272 by adding Article
367(4) and by substituting the expression ‘constituent assembly’ in the proviso
to Article 370(3) with the term ‘Legislative assembly’ changes the recommending
body and makes a new arrangement at variance with that specific constituent
assembly. The consequence of permitting amendments through the circuitous
manner would be disastrous. Hence amendments cannot be carried out by bypassing
a procedure which has been laid down for that purpose.[49]
Article 370(1)(c) applies the provisions of Articles 1 and 370 to the State of J&K.
Article 370(1)(d) confers the President with the power to apply “other”
provisions of the Constitution subject to “exceptions and modifications”. However,
the President has the unilateral power under Article 370(3) to notify the
cessation of Article 370. Consultation and collaboration between the units are
necessary only when applying provisions of the Indian Constitution to the State
requires amendments to the State Constitution. The exercise of power is not
mala fide since the concurrence of the State Government was not necessary for
the application of provisions under Article 370(1)(d). Deception can only be
proved if the unavailable or improperly exercised power is involved, which is
not the case here. Thus, CO 272 is valid to the extent that it applies all the
provisions of the Constitution of India to the State of J&K.
The Constitutional Orders issued in exercise of power under Article
370(1)(d) applying the provisions of the Constitution to J&K to bring out the
point that CO 273 is the culmination of the process of integration. Since the
first constitution order under Article 370(1)(d) in 1950 the president has used
the power to issue constitution orders more than forty times by which a large
part of the constitution of India was made applicable to the state of J&K.[50]
This integration was a gradual and collaborative process, with modifications
made to the provisions over time. The continuous exercise of power under
Article 370(1) by the President indicates an ongoing constitutional
integration, and the declaration issued under Article 370(3) is seen as the
culmination of this process. The court does not find evidence of mala fide
intent in the President's exercise of power under Article 370(3).[51]
E) CHALLENGE TO THE REORGANISATION ACT
The J&K Reorganisation Act which reorganised the State of J&K
into two Union Territories- the union territory of Ladakh without a legislature[52]
and the Union Territory of Kashmir with a legislature[53] was
challenged both on substantive and procedural grounds. Taking on face value the submission of the
solicitor general that statehood of J&K will be restored the court upheld
that the reorganisation is permissible under Article 3. Also the court directed election commission
of India to conduct elections to legislative assembly of J&K. Restoration
of statehood was also directed to be carried out as soon as possible.
CONCLUSION
The Supreme Court verdict upholding
the abrogation of Article 370 marks a significant legal milestone in the
nation's history. By affirming the constitutional validity of the government's
action, the Court has underscored the principle of constitutional supremacy and
the authority of Parliament to enact transformative reforms. This verdict will
undoubtedly have far-reaching implications for the governance and integration
of the region, setting a precedent for future legal interpretations and
affirming the unity and integrity of the nation.
[1] Re Article 370 of the
Constitution, 2023 INSC 1058.
[2] Sneddon, Christopher (2021),
Independent Kashmir: An incomplete aspiration, Manchester University Press, pp.
12–13
[3] § 6, Government of India Act, 1935
[4] White Paper on States 1951 ¶ 221
[5] Supra 1 at 82 ¶ 130
[6] § 92(5), Constitution of J&K
[7] § 92(3), Constitution of J&K
[8] Supra 1 at 18 ¶ 19, Submission by Kapil
Sibal
[9] Supra 1 at 19 ¶ 21A, Written
submissions of Mr Dushyant Dave relying on S R Bommai v Union of India, (1994)
3 SCC 1
[10] Supra 1 at 19 ¶ 21A, Submissions
by Dr Rajeev Dhavan
[11] Supra 1 at 19 ¶ 21B, Submissions
by Manish Tewari & Mr. Abhimanyu Tewari
[12] Written Submissions of Dr. Rajeev Dhavan, Mr. Gopal
Subramanium, Dr. Menaka Guruswamy, Ms. Nitya Ramakrishnan
[13] Krishna Kumar Singh v. State of
Bihar, (2017) 3 SCC 1.
[14] Supra 1 at 23 ¶ 24B
[15] Supra 1 at 24 ¶ 25A
[16] Supra 1 at 25 ¶ 25B
[17] Supra 1 at 27 ¶ 29
[18] Supra 1 at 31 ¶ 30D
[19] Reliance on Prem Nath Kaul v.
State of J&K, 1959 Supp (2) SCR 270.
[20] Supra 1 at 39 ¶ 33B
[21] Supra
1 at 42 ¶ 33H, Submission of Chander Uday Singh
[22] Ibid
at 42
[23] Supra
1 at 48 ¶ 44, Submission of Tushar Mehta
[24] Ibid
at 50 ¶ 51
[25] Ibid
at 51 ¶ 53
[26] Ibid
at 54 ¶ 61
[28] Supra
1 at 83 ¶ 133
[29] Supra
1 at 90 ¶ 141
[30] Supra
1 at 96 ¶ 150
[31] Debates of the
Constituent Assembly of Jammu and Kashmir, 25 October 1956
[32] Ibid,
7 November 1956
[33] Ibid,17
November 1956
[34] Ibid,
25 January 1957
[35] §
5, Constitution of J&K
[36] State
(NCT of Delhi) v. Union of India, (2023) 9 SCC 1.
[38] State of Rajasthan v. Union of
India (1977) 3 SCC 392.
[39] Ibid
[40] SR Bommai v. Union of India,
(1994) 3 SCC 1.
[41] Supra 1 at 145 ¶ 208
[42] Supra 1 at 152 ¶ 218
[43] Draft article 306A
[44] 17 October 1949, Debates of
Constituent Assembly
[45] Supra 1 at 194 ¶ 272
[46] Supra
1 at 217 ¶ 313
[47] Supra
1 at 226 ¶ 322
[48] Supra
1 at 242 ¶ 342
[49] Supra
1 at 270 ¶ 390
[51] Supra 1 at 318 ¶ 465
[52] § 3, Reorganisation Act
[53] § 4, Reorganisation Act
Article Information
RE- ARTICLE 370: CASE COMMENT ON ABROGATION OF SPECIAL STATUS OF JAMMU AND KASHMIR.
Authors: GOURI C V
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/01
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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