Abrogation of
Article 370 : An Evaluation
Aadhisha Dhaliwal*
Historical
Background of Article 370
The
story of Article 370 begins from the colonial era. Under the British rule, India
was made up by Provinces and Princely States. While the Provinces were directly
controlled by the British, the Princely States were governed by local rulers, provided
they accept British supremacy. As India gained Independence, such supremacy or
suzerainty of the British crown over the Princely States also ceased to
operate. The last Viceroy- Lord Mountbatten came up with two options for the
newly independent Princely States which were 565 in number. They could either
sign an Instrument of Accession to merge themselves with either Pakistan or
India or they could opt for a Standstill Agreement which would allow them to
remain independent, to create a new country of their own.
Before
15th August, 1947, all Princely States except Hyderabad, Junagadh
and Jammu and Kashmir had signed the Instrument of Accession.
Jammu
and Kashmir was ruled by Maharaja Hari Singh who disliked the idea of signing
the Instrument of Accession with either India or Pakistan and desired for Jammu
and Kashmir to be an independent sovereign. He agreed to sign a Standstill
Agreement with both the Nations, however, such an agreement was never signed
between the Maharaja and the Interim Indian Government.
In
August, 1947, the Poonch revolt was organised in Kashmir against the authority
of the Maharaja. It was discovered that this revolt occurred due to
infiltration by the Pakistani Government which refuted this charge and further
blamed the Maharaja’s government for attacking Muslim villages. An armed revolt
was conducted by several thousand tribesmen, also aided by the Pakistani
Government. This was a violent uprising aimed at making Kashmir a Pakistani
states. Pakistan also levelled threats towards the Maharaja in order to ensure
Kashmir’s accession.
In
response to such uprisings sparked and threats forwarded by Pakistan, Maharaja
ended up signing the Instrument of Accession in favour of India so as to secure
military assistance, given the volatile circumstances of the State.
However,
the ruler of Jammu and Kashmir put forward certain conditions before signing
the Instrument of Accession. Through this agreement, the powers of the Union
were significantly curtailed in regards with governance of Jammu and Kashmir.
The Centre was allowed to make laws only on the subjects of Foreign Affairs,
Defence and Communications.
As a
result, Article 370 was added in the Indian Constitution. Jammu and Kashmir was
given a special status vide this Article. It was given more autonomy as
compared to other Indian states. The Clause 7 of the Instrument of Accession
stated that Kashmir shall not be forced to accept the Indian Constitution in the
future. Jammu and Kashmir was to have a Constitution of its own. The powers of
the Union Legislature were, as mentioned before, significantly curtailed. It
was mentioned that this article could be abrogated only on the concurrence of
the state of Jammu and Kashmir itself.
Development
of Article 370
The
first constitutional order regarding Article 370 was issued by Dr. Rajendra
Prasad- the first President of India. This was called the Constitution
(Application to Jammu and Kashmir) Order, 1950. It specified the extent of
legislative powers of the Union for the subjects of Foreign Affairs, Defence
and Communications in Jammu and Kashmir. It also mentioned certain modified
Constitutional provisions that would apply to the State.
In
1952, the Delhi Agreement was signed between the Government of Kashmir and the
Government of India. Schedule Seven of the Indian Constitution mentions the
subjects that shall fall under the legislative power od the State Government,
the Union Government and certain subjects that can be deliberated upon by both.
In a case of disagreement between the two, the decision of the Union Government
is implemented. However, the Delhi Agreement stated that the subjects under the
Concurrent list shall be legislated over by the Government of Jammu and Kashmir
itself. It also extended Constitutional provisions like citizenship,
fundamental rights, trade, elections etc to the State.
Finally,
the Constitution of Jammu and Kashmir was adopted in 1956 and in 1957 the
Constituent Assembly was dissolved. In 1959, in the case of Prem Nath Kaul vs.
State of Jammu and Kashmir[1],
the Supreme Court held that even the President’s declaration shall be subject
to approval of the Constituent Assembly of Jammu and Kashmir.
In
1962, an attempt to pare down the special status of Jammu and Kashmir was made
through the judicial decision in the case of Puranlal Lakhanpal vs. The President
of India[2]
which states that the President can be given wide powers to amend the
Constitution of Jammu and Kashmir.
It
must be noted that when the Constituent Assembly was dissolved in 1957, it
hadn’t arrived on a decision regarding the abrogation or amendment of Article
370, leaving the status of the provision uncertain. However, in the case of
Sampat Prakash vs. The State of Jammu and Kashmir[3],
the Supreme Court held that Article 370 would continue to exist even after the
Assembly’s dissolution, giving the Article a permanent status.
Abrogation
of Article 370
There
existed several reasons for abrogation of Article 370.
Firstly,
it instilled a mentality of separatism and marred the unity of India. It has
kept the two-nation theory alive.
Secondly, Article 370 has also helped create power elites
and local Sultans, who wield enormous power, which they use to trample upon the
genuine demands of common people for public welfare. As no outsider can settle
in the state and own any property there, the politically well-connected people
stand to gain enormously. It is these influential people who make the rules,
decide the price and determine the buyer, since any competition from an
outsider is completely ruled out.[4]
Thirdly, it has also been stated that the violence against
Kashmiri Pandits in the 1980s was a consequence of the existence of Article
370. Major organisations in support of Kashmiri Pandits stated that this
provision eroded the Indian sentiment from the Kashmir valley and led to the
establishment of a “Mini Pakistan” where the pro-majority government did not
take action against the ethnic cleansing and terrorism.
It was also contended that this special status was supposed
to be temporary from the very beginning, as mentioned in Article 370.
Article 370 was also blamed for being discriminatory in
nature. Certain laws prevalent in the erstwhile state promoted discrimination.
Some examples of such discrimination include the Jammu and
Kashmir State Subject Law of 1927, which prevented outsiders from settling in
the erstwhile State. Arguing that even the wealth tax could not be imposed in
the State, the application argues that the Urban Land Act, 1976, which is in
force in the entire country, was not applicable to Jammu and Kashmir and as a
result rich landlords, belonging to the majority community in the Valley,
indulged in economic exploitation of the poor and the Indian citizens, who were
non-State subjects and lived in the valley as they could not even secure loans
from the financial institutions.[5]
Thus, a need to repeal this Article was sensed.
However, it could be done only with the approval of the
Constituent Assembly of the State. Since, there was no such Assembly, on August
5, 2019 President Ram Nath Kovind issued a Presidential Order to amend Article
367 which is regarding the interpretation of the Constitution. This order
allowed “Constiuent Assembly” written in Clause 370(3) to be read as
“Legislative Assembly”.
Since Jammu and Kashmir was under President’s Rule at the
time, the powers of the Jammu and Kashmir Legislative Assembly were vested in
the Union Parliament. So, a few hours after C.O. 272 (Presidential Order) was
issued, the Rajya Sabha recommended the abrogation of Article 370, through
a Statutory Resolution.[6]
On August 6th, the Rajya Sabha’s recommendation
was put into effect by the President and Jammu and Kashmir’s special status
ceased to exist through a Presidential Order (C0 273).
Also, in 1029, Jammu and Kashmir was bifurcated into two
Union Territories- Jammu and Kashmir, and Ladakh. It was decided that Ladakh
shall not have a legislative assembly.
A petition was filed against this in the Supreme Court by
Advocate Shakir Shabir and the Jammu and Kashmir National Conference Leaders,
Mohammad Akbar Lone and Hasnain Masoodi.
Firstly, the petitioners applied the Doctrine of Colourable
Legislation which states that what cannot be done directly must not be done
indirectly. However, this is precisely how Article 370 was repealed i.e. by
amending Article 367.
Secondly, the bifurcation of the State was challenged. According
to them, this violated Article 3 of the Indian Constitution.
This Article empowers the Parliament to form new States and
alter or modify the boundaries of existing states. The petitioners argue that
Article 3 does not give the Parliament powers to downgrade federal democratic
states into a less representative form such as a Union Territory.[7]
This case was referred to a five-judge Constitution Bench.
This bench was tasked with the question of whether the
Sampath Prakash case may be termed per incuriam for being against the decision
given in the Prem Nath Kaul case.
The Prem Nath Kaul case clearly stipulated that even a
Presidential Order shall gain approval of the Constituent Assembly of Jammu and
Kashmir. Once the assembly was dissolved, these exercises of its powers also
stopped existing. However, in Sampat Prakash, a Presidential Order was passed
in the state of Jammu and Kashmir where presently there was no constitutional
assembly. Thus, there was a conflict between the two cases.
The Supreme Court held that there was no such conflict.
Firstly, the Court pointed out that the first case occurred before the
formulation of Constituent Assembly of Jammu and Kashmir but after the
enforcement of Constitution of India. It was at such a time, that decisions had
to be approved by Constituent Assembly.
Secondly, the Court mentioned that the first case did not
consider what would happen to the powers of Article 370 once the Constituent
Assembly of the State was dissolved.
Thus, it was held that Sampat Prakash was not per incuriam
of the Prem Nath Kaul case.
This was held in 2020. Further, in 2023, the matter was
referred to a five-judge for further deliberation upon the Challenge to the
Abrogation of Article 370.
7-point Judgement of the Supreme Court
This bench deliberated upon seven Issues.
First, was the issue of whether Article 370 was a temporary
provision or not. According the petitioners, the dissolution of the Constituent
Assembly without deliberating upon this issue made it a permanent provision.
However, the Respondents stated that, as stated in the Constitution, this
Article is a temporary provision and that after the dissolution of the
Constituent Assembly the power of abrogation were transferred to the President
of India.
The Court was in favour of the Respondents.
Justice Kaul agreed, citing that “Article 370’s
historical context, its text, and its subsequent practice” indicates its
temporary nature. The President’s power can be exercised post-dissolution “in
line with the aim of full integration of the State,” he wrote. [8]
Secondly, the question of whether the Parliament could
exercise the powers of the J&K Constituent Assembly was considered.
According to the petitioners, the two have vastly different functions and only
the Constituent Assembly could recommend the abrogation of Article 370. The
Respondents contended that in context of J&K both have the same meaning, as
can be seen in history, when J&K did not have a Legislative Assembly.
CJI D.Y. Chandrachud held that no distinction,as presented
by the petitioners, exists under Article 356. He noted that interpreting the
phrase “powers of the legislature” to allow Parliament to exercise all
constitutional powers of the Legislative Assembly would limit the power of the
state. “However,” he continued, “the Constitution recognises such reduction of
federal power when the Proclamation under Article 356 is in force.” [9]
The third issue was whether the President has the powers to
abrogate Article 370 without the recommendation of the Constituent Assembly.
Firstly, the Court cited S.R. Bommai case to establish that once President’s
Rule is declared the State Government must be dissolved to avoid governance by
two organistaions. In such a case, President may introduce several rules but
they can only be subjected to judicial review if a mala fide exercise of power
or if there is no reasonable nexus between action taken and goal of proclaiming
President’s rule.
As none of these conditions were fulfilled, the Court held
that President has the power to abrogate Article 370.
The fourth issue was regarding validity of CO 272 i.e.
amendment of Article 367. It was held that the Order was only valid in part. It
was not justified to use Article 367 to amend Article 370 in a significant
manner. However, since Article 370(1)(d) allows the President to apply thw
whole of the Constitution to J&K, the effect of CO 272 was not invalid.
Only paragraph 2 of C0 272 was invalid only to the extent that it amended
Article 367.
The fifth issue was regarding the retention of sovereignty
by Jammu and Kashmir after signing the Instrument of Accession with India. It
was held the Jammu and Kashmir did not retain sovereignty after signing the
document. According to Article 370(1), Article 1 of the Constitution, was valid
in Kashmir. Section 3 of the Jammu and Kashmir Constitution declares Jammu and
Kashmir as an integral part of India and Section 147 prohibits amendments to
Section 3.
The sixth issue question the inoperative status of the
Constitution of Jammu and Kashmir.
“The implicit but necessary consequence of the
application of the Constitution of India in its entirety to the State of Jammu
and Kashmir is that the Constitution of the State is inoperative,” the Chief
wrote.[10]
The seventh issue was regarding the reorganisation of the
State. Here, the difference between dissolution of a State and the character of
a State was discussed while deliberating upon the fact that the reorganisation
turned Jammu and Kashmir into a Union Territory. However, this question was not
given much heed as the Solicitor General submitted that the statehood of Jammu
and Kashmir would be restored soon. The Court directed that Assembly elections
be conducted in the State before 30th September, 2024.
A suggestion to establish a truth and reconciliation
commission to address human rights violations was put forward by Justice Kaul.
Thus,
the abrogation of Article 370 was upheld by the Supreme Court.
* Student of B.A,LL.B (Honours ) ( 1ST YEAR) National Law University , Jodhpur
[1]
Prem Nath Kaul vs State of Jammu and Kashmir,
1959 AIR 749
[2]
Puranlal Lakhanpal vs. The President of India, 1961 AIR 1519
[3]
Sampat Prakash vs. The State of Jammu and Kashmir, 1969 AIR 1153
[5]
“Kashmiri Pandit Body Supports Abrogation of J&K Special Status, Says
Article 370 was discriminatory”, Padmakshi Sharma, LiveLaw Top Stories, 27
July, 2023
[6]
2023 INSC 1058
[7]
Challenge to the Abrogation of Article 370, The Supreme Court Observer.
[8]
Abrogation of Article 370, Judgement Summary, Supreme Court Observer
[9]
Abrogation of Article 370, Judgement Summary, Supreme Court Observer
[10] Abrogation of Article 370, Judgement Summary,
Supreme Court Observer
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