ByVikrant Rana, Nihit Nagpal and Akif Abidi
“Constitution is not a mere lawyers’ document, it is a vehicle of Life, and its spirit is always the spirit of Age.”
― Dr. B.R. Ambedkar in the Constituent Assembly
On December 11, 2023 the Constitution Bench of the Hon’ble Supreme Court of India upheld the Presidential Orders [C.O. 272] [C.O. 273], dated August 05 and 06, 2019 which amended the Article 367 of the Constitution and abrogated Articles 370 and 35A of the Indian Constitution respectively. This remarkable decision has multifaceted impact on the socio-economic, and politico-legal landscape of India. The decision has been hailed by many as a final nail in the coffin of secessionists and separatist ideology while another section criticized the decision as being anti-federal in nature and opposed to the Basic Structure of the Constitution.
In order to understand the lifecycle of Article 370, one must acknowledge and realise the politico-legal developments that necessitated its birth.
Historical Significance: Why it came around?
Pursuant to the finalizing of the partition plan of the subcontinent essentially on the basis of religious identities, the Hindu Ruler Hari Singh of the Muslim majority Kashmir state decided to sign a standstill agreement in the politically volatile times.
However, the guerrilla attacks by rag tag militants from West Pakistan side ultimately forced Maharaja Hari Singh to sign an Instrument of Accession which gave Indian Parliament jurisdiction over three crucial subjects i.e. Foreign Affairs, Defence and Communications.
In this tumultuous background, the Article 370 came into existence when the Constitution of India came into force in 1950. The Article 370 provided that the provisions in Indian Constitution except Article 1 and 370, would not apply to the State of Jammu and Kashmir. Further, to amend or repeal the Article 370 itself, the Constituent Assembly of Jammu & Kashmir must give the consent. Also, to apply any provision of the Constitution of India to Jammu and Kashmir, consultation with the Government of State.
This was followed by the first Presidential Order Constitution (Application to Jammu and Kashmir) Order, 1950 that defined the subjects that would be applicable the State of Jammu and Kashmir.
In 1954, through the Presidential Order recognizing the terms of the Delhi Agreement signed in 1952, Article 35A was introduced protecting the territorial integrity of the State of Jammu and Kashmir. It conferred special rights to the permanent citizens of Jammu and Kashmir. This was in consultation with the Constituent Assembly of Jammu and Kashmir.
In 1956, the Constituent Assembly of Jammu and Kashmir was dissolved, leaving the provisions of Article 370 open to varied interpretation in different legal challenges throughout the previous 70 years.
Legal Tussle over the years
The legal challenges over the applicability of Article 370 had been in the Courts several times. Beginning with the judgment in Prem Nath Kaul vs Union of India (AIR 1959 SC 749) wherein Article 370(3) was discussed. The Court discussed the legislative competence of the erstwhile Maharaja in giving land to tillers. The Court held in this case that all Presidential Orders applying to the State of Jammu and Kashmir are subject to the approval of the Constituent Assembly. However, this was limited to reviewing the legislative competence behind enactment of Big Landed Estates Abolition Act, 1950.
The direct interpretation of Article 370(1) happened for the first time in the case of Puranlal Lakhanpal vs The President of India (1961 AIR 1519) where the Presidential Order applied Article 81 of the Constitution, with amendment. It was decided by the Hon’ble Court that broad interpretation should be given to Article 370 and the President has power to amend the Constitution in Jammu and Kashmir.
The Hon’ble Court dealt with the issue of Article 370 vis a vis the Constituent Assembly of Jammu and Kashmir, in the case of Sampat Prakash vs Union of India (1969 SCC (1) 562). It was argued by the Petitioners that Presidential Order applying Article 35(c) was bad in law since Article 370 ceased to exist after the dissolution of the Constituent Assembly. However, the Supreme Court held that Article 370 continues to exist subsequent to the Assembly’s dissolution.
Finally, in Maqbool Damnoo vs. State of Jammu and Kashmir (1972 AIR 963) the Supreme Court clarified that the President has powers to amend Article 367 of the Indian Constitution and change the interpretative clause of the Constitution, even without the consideration of the Constituent Assembly, which did not exist at the time.
In State Bank of India vs. Santosh Gupta (Civil Appeal Nos. 12237-12238_of 2016) it was held that the consent or concurrence of the Constituent Assembly of Jammu and Kashmir was crucial to repeal Article 370. The case was discussing the applicability of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
Abrogation and the Pursuant Legal Challenge
Following the political debacle in 2018, there was no political party in majority which paved the way for imposition of Governor’s rule in Jammu and Kashmir in June, 2018 and subsequently, the President’s rule was imposed in December, 2018. This latter proclamation replaced the Legislative Assembly and Governor with the Union Parliament and the President.
Finally, on August 05, 2023 the President issued Order 272 amending the interpretation of ‘Constituent Assembly’ under Article 370(3) to ‘Legislative Assembly. Subsequently, vide C.O. 273 since there was no functioning legislative assembly, the Parliament approved the abrogation of the Article 370 except Clause 1 which provided that Constitution of India will operate in the State of Jammu and Kashmir.
This watershed event opened floodgates of writ petitions against the Union government in the Hon’ble Supreme Court. The Court on August 28 deemed it essential to refer the matter to a Constitution Bench for further consideration.
Contentious Arguments and a Definitive Verdict
The Petitioners’ argued that the State of Jammu and Kashmir was placed at a distinct footing considering the socio-political history of the land. However, the Supreme Court held strongly that the State of Jammu and Kashmir did not retain any semblance of sovereignty but only enjoyed special autonomy. Hence, the decision of the Supreme Court in Prem Nath Kaul was overruled to that extent.
Another crucial question before the Hon’ble Supreme Court was whether Article 370 is a temporary provision or it had transcended permanency? The Petitioners had argued that subsequent to the dissolution of Constituent Assembly, the provision of Article 370 had been retained which made the same permanent in nature but the Hon’ble Supreme Court held that the purpose of the provision was to merely deal with a certain circumstance which was necessitated due to the historical background. Further, “Holding that the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would lead to freezing of the integration contrary to the purpose of introducing the provision”
Hence, the President could exercise the power post dissolution of the Constituent Assembly “in line with the aim of full integration of the State.”
The Petitioners further contended that imposition of Article 356 would allow only legislative and not constitutive powers to be transferred to the Parliament. However, it was held by the Court that there is no such distinction under the ambit of Article 356.
The Supreme Court however, declared the CO 272 as unconstitutional to the degree of replacing the words “Constituent Assembly” with “Legislative Assembly” via amendment in Article 367, interpretative clause. It was decided that any material and appreciable amendment could not be undertaken without the concurrence of State Assembly, as the same was an important factor as per Article 370 (1)(d). Yet still, since the effect of C.O. 272 was to abrogate Article 370 and apply the Constitution of India as whole, which was a power President of India did possess.
A major impact of the abrogation is that the whole of the Constitution of India applied to Jammu and Kashmir just as it did to other States and Union Territories. This judgment has strong ramifications for the question of federalism in India.
The Supreme Court has held the abrogation to be constitutionally valid based upon the procedural technicalities, but the substantive question regarding federal structure, regaining of the Statehood are still open. Towards that end, angst of Supreme Court was palpable as the Court directed to conduct elections before September 30, 2024 and expedite the process of restoration of Statehood for Jammu and Kashmir.
Drawing parallels with post-apartheid South Africa, Justice Kaul also recommended establishment of a “Truth and Reconciliation Commission” for upholding rule of law and remove all distrust from the youth, and acknowledge a duty towards giving reparations for the human rights violations.
As we put to rest the legal challenges of Article 370, it is important to foster economic development, educational opportunities, and cultural exchange. Our collective efforts and a sustained commitment to integrity and fraternity can overcome historical grievances, build trust, and pave the way for a future where the people of Jammu and Kashmir become a symbol of harmony, coexistence, and shared prosperity.