On December 11, 2023, the SC 5 judges bench headed by CJI DY Chandrachud provides its judgment on the petitions challenging the abrogation of Article 370 by advocate Manohar Lal Sharma & others and defended by Attorney General K K Venugopal and Solicitor General Tushar Mehta on part of UOI. The judgment comes 'historic' as it upholds the constitutional validity of the government's action on August 5, 2019, and August 2, 2019, as per the Constitutional Orders 272 and 273 duly signed by the President and declines the special status of Jammu and Kashmir guaranteed by the Article 370 (Part XXI). A thorough study of the constitutional legalities and issues, in the article, sustained for as long as seventy years of independence is a must. The article promises to provide in-depth knowledge on the subject as discussed and debated for the period.
Unification and making of our Constitution:
Following a protracted struggle for independence, the British relinquished control over India, leaving the nation in a state of upheaval and disorder—an epoch poignantly dubbed 'A tryst with Destiny' by Jawaharlal Nehru, the inaugural Prime Minister. On August 14, at the stroke of midnight, the Dominion of India and the Dominion of Pakistan emerged as two independent entities. Concurrently, the 565 princely states faced a choice: either amalgamate with one of the dominions or maintain independence. Thirteen princely states opted to join the Dominion of Pakistan. Guided by strategic vision, diplomatic finesse, and pragmatic decision-making, Sardar Vallabhbhai Patel, known as the Iron Man of India and Bardoli Gandhi, successfully integrated the remaining princely states into India.
An 'Instrument of Accession' was formally executed by the rulers of the 551 princely states and the Governor General of India, signifying their acceptance, assumption, and declaration of the exercise of the Government of India Act, 1935, within their territories. However, this agreement stipulated that any amendments to the Act required subsequent endorsement through a supplementary Instrument.
Maintaining sovereignty for a brief 73-day period, Maharaja Hari Singh of Kashmir, confronted with external aggression from Pakistan and internal democratic turmoil led by Sher-E-Kashmir Sheikh Abdullah, compelled to sign the Instrument of Accession with the Dominion of India. In this accord, Clause 7 specified that the Dominion could exclusively intervene in Defense, External Affairs, and Communication matters of the state, while the state retained autonomy in deciding on any future Constitution of India. Consequently, Article 370 was incorporated into the Constitution of India, providing Jammu and Kashmir the exemption to formulate its own constitution.
Visit this link to have a clear understanding of the Article 370: https://www.constitutionofindia.net/articles/article-370-temporary-provisions-with-respect-to-the-state-of-jammu-and-kashmir/
The Presidential Order of 1954:
Following the 1952 Delhi Agreement, on May 14, 1954, The Constitution Order 1954 came into effect, introducing Article 35A. This article conferred authority upon the state legislature to legislate on the privileges of its permanent residents concerning immovable property, settlement in the state, and employment. Moreover, Indian Citizenship was extended to the 'permanent residents' of Jammu and Kashmir, aligning them with the broader framework of the nation. The fundamental rights enshrined in the Indian Constitution were also made applicable to the state, marking an integration of legal principles.
Further, the jurisdiction of the Supreme Court of India was extended to encompass the state, ensuring uniformity in the application of justice across the nation. The Central Government was vested with the power to declare a national emergency in response to external aggression, underscoring the commitment to safeguarding the territorial integrity of the region. Additionally, the Constitution Order 1954 addressed financial provisions and the disposition of the state, thereby delineating the administrative and economic framework in alignment with the broader constitutional structure.
Adoption of J & K Constitution:
The adoption of the Jammu and Kashmir Constitution in 1956 marked a significant milestone, as the Constituent Assembly diligently crafted and presented the constitution, receiving resounding approval from both the State Legislature and the Government. The document emphatically declared the state of Jammu and Kashmir as an integral part of India, solidifying its constitutional status within the nation. Subsequent to the constitution's adoption, the Constituent Assembly was dissolved, completing its constitutional mandate.
Is Article 370 a permanent feature of the Constitution?
Now, addressing the question of whether Article 370 is a permanent feature of the constitution demands careful consideration. Clause 3 of this article outlines the mechanism for its cessation through a public notification issued by the President on the recommendation of the Constituent Assembly of the State. This provision, inherently providing a self-destructive pathway, challenges the notion of permanence. Furthermore, the article is explicitly titled 'Temporary provisions with respect to the state of Jammu and Kashmir,' indicating a provisional nature that was not intended to be everlasting.
Adding another layer to this discussion, the Supreme Court's pronouncement in the Keshavanand Bharti case in 1972 underscored the concept of the basic structure of the constitution, which is deemed unamendable by any means. Article 370, with its inherent conflicts with the constitutional sovereignty bestowed upon the nation, cannot be deemed an immutable part of the basic structure. Consequently, it remains susceptible to amendments, abrogation, or any other means that could render it ineffectual.
The State and Union Relations:
As explicitly outlined, the applicability of only Article 1 and Article 370 to the state of Jammu & Kashmir was established. For the enforcement of other constitutional provisions, the President of India was mandated to issue a Constitutional Order, based on the recommendations of the Constituent Assembly of the state. However, a pivotal development emerged when the Constituent Assembly of the state was dissolved in 1956.
This dissolution presented a conundrum, leading to arguments that no amendments could be made to Article 370, thereby ascertaining its elevation to a permanent feature of the Constitution. The absence of an active Constituent Assembly raised questions about the legitimacy of any potential modifications to Article 370, emphasizing the complex and nuanced nature of constitutional processes and amendments in the specific context of Jammu & Kashmir.
Famous Judgments:
- Puranalal Lakhanpal vs The President of India & Ors (1964)- The Supreme Court ruled that the President had the right to issue an order, under the Article 370 and General Clauses Act 1897, to amend and modify the article in any extent.
- Sampat Prakash vs The State of J & K (1968) - The Supreme Court ruled that The President can issue any order under Article 370 and apply other provisions of Indian Constitution to Jammu and Kashmir with exceptions and modifications as deemed necessary.
- Mohd. Maqbool Damnoo vs The State of J & K (1972)- The Supreme Court provided that application of Article 367 to interpret the Article 370 and constitutional orders issued under the article is valid.
- SBI Case (2016) - The Supreme Court provided that Article 370 may cease to exist by the Presidential Order issued on the recommendations of the Constituent Assembly of the state.
Presidential Rule u/s 356:
After the collapse of the coalition government of J & K led by Mehbooba Mufti and imposition of Governors' Rule for six months since December 2018, Presidents' Rule was imposed in the state for six months since July 2019. During Presidential Rule, the executive functionality of the state/UT or part of state/UT rests on the President while the state legislature role is assumed by the Union Parliament.
Abrogation of Article 370:
On August 5, 2019, the Union Parliament, acting as the state legislature of Jammu and Kashmir, recommended the President to interpret 'Constituent Assembly' mentioned in Article 370 as 'Legislative Assembly'. The President, therefore, issued an order C.O. 272 that provided a proviso to read 'Constituent Assembly' as 'Legislative Assembly'.
Few hours later, the Rajya Sabha recommended the abrogation of Article 370, through a Statutory Resolution. The next morning, on August 6, President Kovind issued another order C.O. 273 putting into effect the Rajya Sabha recommendation.
Hence, all clauses of Article 370 ceased to operate, except Clause 1 which was amended to state that the Constitution of India applies to the State of Jammu and Kashmir.
Further, on August 9, the Union Parliament brought Jammu and Kashmir Reorganization Act, 2019, that bifurcated the state into two Union Territories - Jammu & Kashmir and Ladakh, the former one having a state legislative body.
Constitutional Validity of Abrogation of Article 370:
On December 11, 2023, the Supreme Court of India gave a historic judgement on the constitutional validity of the abrogation of Article 370 challenged by many petitioners, led by Manohar Lal Sharma. The SC upheld the government action dismissing all the challenges. It mentioned that Article 370 was not a part of the basic structure of the constitution and hence, could be amended through constitutional methods.
Key Issues with the Judgment:
- Doctrine of Colorable Legislation: The doctrine means that 'what cannot be done directly, cannot be done indirectly'. It was an indirect approach of the President to amend the article 370 without the concurrence of the Constituent Assembly. The SC mentions that the route taken by the government through C.O.272 was not correct though its implementation was valid.
- Judicial Evasion: The Article 3 provides the Union Government the power to form new States, new UTs, increase or decrease the area of States or UTs but doesn't provide the power to end the status of State or UT in any case. Yet, the SC does not take a stand to call it invalid and unconstitutional, evading from its responsibility.
- Directive to EC to conduct elections by September 2024: SC, being a constitutional body, doesn't have any right to give directions to any other constitutional body like Election Commissions. It was not pleaded by anyone to do so, and the date chosen is, itself, arbitrary.
- Truth & Reconciliation Committee: Justice Kaul calls for setting up a T&RC because it is more of a political issue than a legal issue. On such a sensitive issue, it is upon the Government to set up T & RC and address the issues of its subjects of Jammu and Kashmir.