Article 370 in the Constitution of India
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Dilution of after 1970
A backgrounder
Dhananjay Mahapatra, August 3, 2023: The Times of India
New Delhi: When Pakistanbacked attacks made then J&K monarch Hari Singh to hurried abandon the dream of keeping his princely state independent and sign the Instrument of Accession on October 26, 1947, he had handed over to India full control over only three subjects — defence, external affairs and communications.
In his letter to then governor general Lord Mountbatten pleading for accession to India, Singh had mentioned Pakistan-backed fighters overrunning the state.
“The number of women who have been kidnapped and raped makes my heart bleed. The wild forces thus let loose on the state are marching on with the aim of capturing Srinagar. . . as the first step to overrunning the whole state,” he said.
Part of a five-judge bench-led by CJI D Y Chandrachud which is hearing the challenge to abrogation of Article 370, Justice Sanjay Kishan Kaul, whose ancestry is deeply rooted in Kashmir, said, “I understand the infiltrators were seven miles from Srinagar (when Indian forces stopped them and later evicted them). ”
Appearing for National conference leader Moham- mad Akbar Lone, senior advocate Kapil Sibal said the Instrument of Accession allowed the government of India to have control over defence, external affairs and communications.
However, he admitted that over the years, Parliament has passed as many as 53 amendments to the Constitution (Application to J&K) Order, 1950. This means apart from the three major subjects of defence, external affairs and communications, Parliament has steadily applied the provisions of the Constitution to Jammu and Kashmir, despite the state’s Constituent Assembly framing a separate constitution for J&K in 1957.
Of the total 54 such orders, including the first one in 1950, 52 were passed by Parliament till 1996, a period of nearly five decades when Congress was at the helm of governance in the country. The Constitution (Application to J&K) Amendment orders in 2017 and 2019 were passed during the NDA regime. The 2017 order extended the GST regime to the state.
The 1950 order said the government of India would have power to make laws that would apply to J&K on subjects relating to all matters of defence and armed forces; arms, firearms and explosives; atomic energy; preventive detentions relating to defence, foreign affairs and security of India; foreign affairs, diplomatic relations and UN; extradition; admission, emigration and expulsion from India; pilgrimage to places outside India; railways; airways; posts and telegraph; trade and commerce with foreign countries; salaries of MPs from J&K; any investigation on subjects aforementioned.
SC upholds Modi governments decision to amend article 370
AmitAnand Choudhary, Dec 12, 2023: The Times of India
New Delhi : A five-judge constitution bench unanimously upheld the Narendra Modi government’s 2019 decision to scrap the nearly 70-year-old special status for Jammu and Kashmir under Article 370 and its bifurcation into two Union Territories, holding that integration of the border state with the country was “unconditional and complete”, and rejecting the argument that it ever enjoyed internal sovereignty.
In a boost to PM Modi ahead of the 2024 Lok Sabha elections, CJI D Y Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant held that Article 370 (3) empowered the President (read the Centre) to unilaterally issue a notification for abrogation of special status and that power remained undimmed by dissolution of the Constituent Assembly of J&K.
The bench asked for restoration of J&K’s statehood “at the earliest and as soon as possible” and for assembly elections to be held by September 2024, while upholding the decision to hive off Ladakh as a Union Territory.
The reasoning marked a fatal blow to the plea of the challengers that J&K’s special status could be revoked only with the concurrence of the state Constituent Assembly and with that body gone, it had acquired permanence.
It was a comprehensive victory for the Centre. The court framed 10 questions to answer all aspects of the challenge by the petitioners and upheld the Centre’s contention on all counts, holding that the landmark decision of August 5, 2019, marked the culmination of the process of integration of the state and clearing the way for application of the entire Constitution to it. The bench delivered three concurring judgments — by the CJI for himself and Justices Gavai and Kant; and by Justices Kaul and Khanna. They ran into 476 pages.
A backgrounder
Dec 12, 2023: The Times of India
ART 370 FOR INTEGRATION, NOT DISINTEGRATION: SC
WHAT ART 370 SAYS ABOUT SCRAPPING PROVISIONS
Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative... Provided that the recommendation of the Constituent Assembly of the State... shall be necessary before the President issues such a notification
➤ Petitioners said that since J&K constituent assembly had ceased to exist, Art 370 became a permanent feature
➤ SC says ‘President had the power to issue a notification declaring that Article 370(3) ceases to operate without the recommendation of the constituent assembly’. Also says ‘President did not have to secure the concurrence’ of the state govt or Union govt acting on behalf of the state govt
WHAT SC JUDGMENT SAYS
1 Erstwhile J&K state did not have internal sovereignty different from other states of the country after it became part of India.
2 ‘Exercise of presidential power to issue constitutional order abrogating Article 370 of Constitution’ is valid.
3 Constituent assembly of J&K was never intended to be a permanent body; Article 370 was a temporary provision.
4 Creation of the UT of Ladakh upheld; not necessary to look into the same for UT of Jammu & Kashmir since it is temporary.
5. EC to conduct elections to J&K legislative assembly by Sept 30, 2024. ‘Restoration of statehood shall take place at the earliest h Bench pronounced 3 separate and concurring judgments hJustice S K Kaul sought ‘impartial truth & reconciliation’ panel to probe human rights violations by state and non-state actors.
J&K’s surrender of sovereignty was complete, unconditional: SC
AmitAnand Choudhary, Dec 12, 2023: The Times of India
New Delhi : Explaining the historical trajectory of Jammu and Kashmir’s relationship with the Union of India, CJI D Y Chandrachud said in his judgment Monday that with the late Hari Singh, the erstwhile maharaja, agreeing to merge his principality with India by signing the Instrument of Accession in 1947, J&K’s surrender of its sovereignty was complete and unconditional. Rejecting the challengers’ argument that J&K’s accession was conditional and, therefore, it retained a part of its sovereignty, the bench said neither the constitutional set-up, nor any other factors, indicated that J&K retained an element of sovereignty.
“All states in the country have legislative and executive power, albeit to differing degrees. The Constitution accommodates concerns specific to a particular state by providing for arrangements which are specific to that state. Articles 371A to 371J are examples of special arrangements for different states. This is a feature of asymmetric federalism, like Article 370 which became applicable to Jammu and Kashmir on the adoption of the Constitution. The state of Jammu and Kashmir does not have ‘internal sovereignty’ which is distinguishable from the powers and privileges enjoyed by other states in the country,” the CJI said.
Bringing the curtains down on the controversy arising out of the Centre’s decision on August 5, 2019, to scrap J&K’s special status, the SC said it was the culmination of the process of integration but held that statehood be restored as soon as possible and a government be elected in the state. The court directed the EC to hold polls in the state by September-end.
On restoration of statehood, the court, significantly, referred to the Centre’s commitment mentioned by solicitor general Tushar Mehta.
The verdict was unambiguous in validating the controversial order to scrap J&K’s special status without the concurrence of the state assembly when the state was under President’s rule.
“The exercise of power by the President under Article 370(1)(d) to issue CO 272 is not mala fide. The President, in exercise of power under Article 370(3), can unilaterally issue a notification that Article 370 ceases to exist. The President did not have to secure the concurrence of the government of the state or Union government acting on behalf of the state government under the second proviso to Article 370 (1)(d) while applying all the provisions of the Constitution to J&K because such an exercise of power has the same effect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the state government was not required,” the CJI said.
“The President had the power to issue a notification declaring that Article 370(3) ceases to operate without the recommendation of the Constituent Assembly. The continuous exercise of power under Article 370(1) by the President indicates that the gradual process of constitutional integration was ongoing. The declaration issued by the President under Article 370(3) is a culmination of the process of integration and as such is a valid exercise of power,” he added.
Justice Kaul, in his judgment, said J&K retained an element of internal sovereignty and Article 370 recognised this by acknowledging the Constituent Assembly of the state. But, he said “Article 370(3) contained the mechanism to bring the temporary arrangement to an end, and in turn, to de-recognise the internal sovereignty of the state and apply the Constitution in toto”. “Since Article 370 is meant to be a temporary arrangement, it cannot be said that the mechanism under Article 370(3) came to an end after the Constituent Assembly was dissolved,” he added.
Agreeing with the CJI and Justice Kaul, Justice Khanna said, “Both judgments uniformly agree that Article 370 of the Constitution was a feature of asymmetric federalism and not sovereignty. Article 370 was enacted as a transitional provision and did not have permanent character. The abrogation of Article 370 does not negate the federal structure, as the citizens living in Jammu and Kashmir do and will enjoy the same status and rights as given to citizens residing in other parts of the country.”
The verdict also rendered the constitution of J&K a dead letter. “The gaps left by the non-application of some parts of the Constitution of India were filled by the constitution of the state. After abrogation of Article 370 (as it stood before the issuance of CO 272 and CO 273) and the application of the entirety of the Constitution of India to the state, the constitution of the state does not fulfil any purpose or serve any function. Hence, 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 court said.
Irreversible changes can be made under article 356: SC
AmitAnand Choudhary, Dec 12, 2023: The Times of India
New Delhi : Holding that the President had the power under Article 356 to make irreversible changes in a state, the Supreme Court rejected the plea that “fundamental, permanent and irrevocable” changes, which are unable to be reversed, could not be made by the Centre during President’s rule in a state. A five-judge bench refused to give credence to the petitioners’ argument the President’s power under Article 356 could be challenged on the ground that it gave rise to irreversible consequences. It said once the presidential proclamation was approved by both Houses of Parliament, so as to reflect the will of the people, the President had the power under Article 356 to make irreversible changes, including the dissolution of a state assembly.
The bench of CJI D Y Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant, said the proclamation under Article 356 was subject to judicial review but the scope of review would nonetheless be limited and the court could not examine the validity of each and every decision taken during President’s rule in a state.
“During President’s rule, there may be hundreds, if not thousands of decisions that need to be taken by the President and Parliament on behalf of the state government to ensure day-to-day administration of the state and the impact of President’s rule on the daily life of citizens is reduced. If every action taken by the President and Parliament on behalf of a state was open to challenge, this would effectively bring to the court every person who disagreed with an action taken during President’s rule. Such an approach would be contrary to the express text of Articles 356 (1)(a), 356(1)(b) and 356(1)(c) which entrusts the governance of the state with the Union executive and Parliament during the period of President’s rule,” the CJI said.
“There is another reason why the level of judicial oversight over the actions taken during imposition of President’s rule may not be as strict as suggested by the petitioners. Most actions taken by the President for the interim governance of the state can be reversed by the state government when it returns to power. Any orders passed, appointments made, decisions taken by the President can subsequently be rescinded or reversed by the state government upon a return to normalcy. Similarly, even if Parliament were to enact legisla- tion on behalf of the state legislature, such legislation could subsequently be repealed by the state legislature upon the proclamation under Article 356 ceasing to operate. Thus, the political process can correct itself and any differences that have arisen between the democratic will of the people exercised through their elected representatives in the state, and the decisions taken by the President and Parliament, can be ironed out upon a return to normalcy. For these reasons, we do not believe that the court ought to sit in appeal over every decision taken by the President during the imposition of Article 356,” he said.
The key questions that SC answered
AmitAnand Choudhary, Dec 12, 2023: The Times of India
SOME KEY QUESTIONS SC ANSWERED
Q Did Jammu & Kashmir retain an element of sovereignty when it joined the Union of India? A No, it did not. Because:
➤ On November 25, 1949, a Proclamation was issued for the state of Jammu & Kashmir by Yuvraj Karan Singh. The declaration in this Proclamation that the Constitution of India would not only supersede all other constitutional provisions in the state which were inconsistent with it but also abrogate them achieves what would have been attained by an agreement of merger.
➤ The Constitution of Jammu & Kashmir was only to further define the relationship between the Union of India and the State of Jammu & Kashmir. The relationship was already defined by the IoA, the Proclamation issued by Yuvraj Karan Singh in November 1949 and more importantly, by the Constitution of India.
➤ There is a clear absence in the Constitution of Jammu & Kashmir of a reference to sovereignty. In contrast, the Constitution of India emphasises in its Preamble that the people of India resolved to constitute India into a sovereign, socialistic, secular, democratic, republic.
Q Is Article 370 a temporary provision?
A The Supreme Court held that Article 370 is a temporary provision on a reading of the historical context in which it was included. The provision was introduced to serve two goals:
➤ First, the transitional purpose: to provide for an interim arrangement until the Constituent Assembly of the state was formed and took a decision on the legislative competence of the Union on matters other than the ones stipulated in the Instrument of Accession.
➤ Second, a temporary purpose: an interim arrangement in view of the special circumstances arising out of war conditions in the state.
➤ The SC said a textual reading of Article 370 also indicates that it is a temporary provision.
Q What happens to the constitution of Jammu & Kashmir?
A The gaps left by the non-application of some parts of the Constitution of India were filled by the Constitution of the state. After the abrogation of Article 370 and the application of the entirety of the Constitution of India to the state, the Constitution of the state does not fulfil any purpose. Hence, the implicit but necessary consequence of the application of the Constitution of India in its entirety to the state of Jammu & Kashmir is that state’s constitution becomes inoperative.
Q Can Parliament convert a state into one or more Union Territories?
A This the SC has left open.
➤ In an appropriate case, the SC said, it must construe the scope of powers under Article 3 in light of the necessary effect of converting a state to Union Territories, which is that autonomy would be diminished, the historical context for the creation of federating units, and its impact on the principles of federalism and representative democracy.
Q What does the concurrent judgment by Justice S K Kaul say?
A He highlighted the intergenerational trauma and suffering which the people in Jammu and Kashmir had to go through over the years and recommended the setting up of a truth and reconciliation commission to talk to the residents and probe into human rights violation by state and non-state actors since the 1980s.
