Article 370: Is There Little Chance for Supreme Court Interference

Adv. Saji Koduvath.

Introduction

The Constitution of India was made applicable to the State of Jammu and Kashmir, in its entirety, like any other States, by a Constitution Order passed by the President of India on 5^th August, 2019. On 6^th August, 2019, in exercise of the powers conferred by clause (3) of Article 370 of the Constitution of India read with clause (1) of article 370, the President, on the recommendation of Parliament, declared that all special status given to J & K under Article 370 would cease to operate.

These developments are highly controversial. Some speak that the highest assurance of historical importance that has been given by the nation, India, through its Constitution, to a constituent state is betrayed. But, others say it is a mark of national integration.

Special status had been given to J&K in the following historical and significant background.

British Restores India 600 Princely States

The British, when left India, through the Indian Independence Act, 1947, restored sovereignty of about 600 princely states, including Kashmir. The princely states had three options: First, to remain as an independent country; Second, to join Dominion of India; and the Third, to join Dominion of Pakistan. The joining with India or Pakistan had to be through a mutual agreement – the Instrument of Accession (IoA.)

Instrument of Accession by J&K

The Maharaja of Kashmir, Raja Hari Singh, had initially decided to take an independent stand and to sign standstill agreements with India and Pakistan. But following an invasion of tribesmen and Army men in plainclothes from Pakistan, he sought the help of India, which in turn led to the accession of Kashmir to India.

Raja Hari Singh signed the IoA on October 26, 1947 and Governor General of India, Lord Mountbatten, accepted it on October 27, 1947.

The Schedule appended to the IoA between India and Kashmir gave the Parliament of India the power to legislate on Defence, External Affairs and Communications, with respect to J&K.

Article 370 Reads:

“370. Temporary provisions with respect to the State of Jammu and Kashmir.—
(1) Notwithstanding anything in this Constitution,—
(a) the provisions of article 238 shall not apply in relation to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to—
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
Explanation. — For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated the fifth day of March, 1948;
(c) the provisions of article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification”

Article 370 and the Constituent Assembly of J&K.

The declared policy of India was that the disputes on accession should be settled in accordance with the wishes of people rather than a unilateral decision of the ruler of the princely state.

India regarded accession of J&K as purely temporary and provisional, as stated in the Government of India’s White Paper on J&K in 1948. In a letter to J&K Prime Minister Sheikh Abdullah dated May 17, 1949, Prime Minister Jawaharlal Nehru wrote: “The Constitution of Jammu and Kashmir is a matter for determination by the people of the state represented in a Constituent Assembly convened for the purpose.”

Article 370 – Subject to Plebiscite

The original draft of Article 370 was presented by the Government of J&K.

Following modifications and negotiations, on the draft placed by J&K, Article 306A (now 370) was passed in the Constituent Assembly on May 27, 1949. It was moved in the Constitution Assembly by Shri. Gopalaswami Ayyangar

Moving the motion, Ayyangar said that though accession was complete, India had offered to a plebiscite taken when the conditions were created, and if accession was not ratified then “we shall not stand in the way of Kashmir separating herself away from India”.

On October 17, 1949, when Article 370 was finally included in the Constitution by India’s Constituent Assembly, Ayyangar reiterated India’s commitment to plebiscite and drafting of a separate constitution by J&K’s Constituent Assembly.

Presidential Order of 1954 & Article 35A

Article 35A of the Constitution has been introduced through a Presidential Order in 1954 invoking Article 370. Article 35A empowered the J&K legislature to define the state’s permanent residents; and their special rights and privileges to Indian-administered Kashmir, including Jammu and Ladakh.

The Maharaja of Kashmir, Hari Singh, had passed a law in 1927 to stop the influx of people from Punjab. Reports say that it was done as urged by Kashmiri Hindus. The same law was re-introduced in 1954. It was made part of Article 35A, and thus granted Kashmir special status to J&K within India.

After enacting Article 35A, all identified residents were issued a permanent resident certificate, which entitled them to special benefits related to employment, scholarships and other privileges. The biggest advantage considered by the permanent residents was that they alone had the right to own, buy, or sell immovable property in the state.

By the 1954 Presidential Order, almost the entire Constitution was extended to J&K. Besides 260 of 395 Articles, 94 out of 97 entries in the Union List were made applicable to J&K by this Order; 26 out of 47 items of the Concurrent List have been brought-in. Seven out of 12 Schedules were also extended to the state.

J & K Constitution

It is very important that Article 3 of the J&K Constitution declared J&K to be an integral part of India. In the Preamble to the Constitution, there was a categorical acknowledgement about the object of the J&K Constitution – “to further define the existing relationship of the state with the Union of India as its integral part thereof.” Moreover people of state were referred as ‘permanent residents’; not ‘citizens’. It is noteworthy that there was no claim as to ‘sovereignty’ of J&K in their Constitution. One of the main reasons for enacting a special Constitution for J&K is said to be to bring the provisions of the laws relating to J&K out of the clutches of the fundamental rights. Various fundamental rights (under Article 14, 19, 21 etc.) made it ‘difficult’ to provide special rights to J&K people and J&K situations.

Special Status given to J&K under Article 370

Article 370 itself exempted operation of other provisions of the Constitution except Article 1 and Article 370, to J&K. By virtue of Article 1, J&K was included in the list of states. It further permitted the J&K to draft its own Constitution.

With respect to the legislative powers of the Parliament, Article 370 restricted Centre to make laws on the subjects included in the IoA, only on “consultation” with the state government. But, if the concurrence of the Government of the State was to be given, or obtained, before the convening of the Constituent Assembly, it was provided to place the same before such Assembly (when it is convened.)

Similar Special Provisions in Other States also

Article 370 is captioned as ‘Temporary Provisions with respect to the State of Jammu and Kashmir’. Article 371 and 371-A to 371-I speak of certain types of privileges or restrictions including purchase of land, in the Himachal Pradesh, Nagaland, Manipur, AP, Sikkim, Misoram, Arunachal Pradesh and Goa. Domicile-based reservation in admissions and even jobs is also allowed.

Why Article 370 was ‘Temporary’

Article 370 was ‘Temporary’ in the sense that the J&K Constituent Assembly had a right to modify/ delete/ retain it. It was temporary, for the validity of this provision depended upon the plebiscite to be held in the State of Jammu and Kashmir.

Does Article 370 Become a Permanent Provision?

Three views are propounded.

First, Article 370 became permanent when the Constituent Assembly of J&K was dissolved (on January 26, 1957). Article 370(3) permits deletion of Article 370 by a Presidential Order, preceded by the ‘concurrence’ of J&K’s Constituent Assembly. It was not happened by a decision of the Constituent Assembly of J&K.

Second view is that Article 370 continues to operate with obtaining the ‘concurrence’ from the State Assembly which stepped into the shoes of the Constituent Assembly.

And the third view is that on dispersal of the Constituent Assembly of Jammu and Kashmir (on January 27, 1957) after adopting the state’s constitution, ‘there vanished also the president’s powers – under Article 370 – to add more legislative powers to the Centre in respect of J&K or extend to the state any other provision of the constitution of India’. (Constitutional expert, AG Noorani, supports this view.)

Rajendra Prasad on ‘Temporary’ Nature of 370

AG Noorani pointed out in an essay that ‘President Rajendra Prasad, himself a distinguished lawyer’, wrote on September 6, 1952 as under:

“… under clause 1(b)(ii) and the second proviso to clause 1(d) of Article 370, it excludes altogether the parliament of India from having any say regarding the constitution of Jammu and Kashmir……The abrogation of Article 370 abrogates along with it application of Article 1 to the state, with the result that the state ceases to be part of the territory of India…”

Alleged aggressions of Centre by the Presidential Orders

The Centre has used Article 370 to amend J&K’s Constitution, though that power was not given (to the President) under Article 370.
Despite a similar provision that of Article 356 of the Indian Constitution (President’s Rule) is in an Article 92 of the J&K Constitution, Article 356 itself was extended to J&K.
The J&K Constitution provides for election of Governor by the Assembly. Article 370 was used to convert it into a nominee of the President.
To extend President’s rule beyond one year in other states, the government made Constitutional amendments one after the other. But, in J&K Article 370 was invoked without this Constitutional Amendment.
Article 249 (power of Parliament to make laws on State List entries) was extended to J&K without a resolution by the Assembly and just by a recommendation of the Governor. It is utter violation of Art. 370.

The Presidential Order and J & K Reorganisation Act of 2019

On August 5, 2019, the President of India issued the Constitution (Application to Jammu and Kashmir) Order, 2019, under Article 370, superseding the Constitution (Application to Jammu and Kashmir) Order, 1954. By virtue of the Order all the provisions of the Indian Constitution were made applicable to Jammu and Kashmir, whereby the separate status conferred to the State J&K was abolished. The Order stated that it was issued with the “concurrence” of the Government of State of J&K. The ‘concurrence’ was, apparently, that had been given by the Governor appointed by the President of India. The President issued the Order on the basis of the resolution adopted by both Houses of the Parliament, Lok Sabha and Rajya Sabha.

Jammu and Kashmir: Status Changed

On August 5, 2019 itself, the Bill, Jammu and Kashmir Reorganisation Bill, 2019, to change the status of Jammu and Kashmir and to form two separate union territories, namely Union Territory of Jammu and Kashmir and Union Territory of Ladakh was introduced in Rajya Sabha; and on the next day, before the Lok Sabha. The union territory of Jammu and Kashmir was proposed to have a legislature, whereas the union territory of Ladakh didn’t.

What Kashmiris Fear

Kashmir is a Muslim-majority Territory. Kashmiris fear that the unique privileges, including property rights, coherent culture out of Muslim population etc. will be eroded; and a change in the law will affect the state’s demographics. Already tensions are high in this region. Apart from enjoying the benefits, the situation prevailed permitted a separate flag and independence over all matters except foreign affairs, defence and communications. The article 370 allowed the state a certain amount of autonomy – and freedom to make laws. It was possible to restrain Indians or Hindus from purchasing property or settle there. And, they were proud of own Constitution and special status.

Kashmiris suspect that by advent of Constitutional changes Hindus would migrate to the state. This would sound well. Former Jammu and Kashmir Chief Minister Mehbooba Mufti has pointed out that changing the law would further alienate Kashmiris.

There had been fights and struggles since 1989. India blames Pakistan. Pakistan raises claim on Kashmir in its entirety.

Stand of Modi Goverment

The government says that the change of law will bring development to the region.

“I want to tell the people of Jammu and Kashmir what damage Articles 370 and 35A did to the state,” said Mr Amith Shah, Home Minister, in the Parliament, “it’s because of these sections that democracy was never fully implemented, corruption increased in the state, that no development could take place.”

Legal Challenge

According to the Constitution, Article 370 could be changed only with ‘concurrence’ of the State. But there hasn’t been normal a state government in Jammu and Kashmir for over a year now. In June last year, federal rule was imposed after the government of the then chief minister, Mehbooba Mufti, was reduced to a minority. Therefore, the governor imposed its rule. The government of India says it is well within its rights to bring in the changes with the concurrence of Governor and that similar decisions have been taken by federal governments in the past.

AG Noorani

AG Noorani says that the Presidential Orders which made the Constitution of India applicable to the State of Jammu and Kashmir in its entirety, like other States, was ‘an illegal decision, akin to committing fraud’.

Political Criticism

P Chidambaram, a senior leader in the opposition (Congress Party) described the decision as a “catastrophic step” and warned in parliament that it may lead to serious consequences. He said: “You may think you have scored a victory, but you are wrong and history will prove you to be wrong. Future generations will realise what a grave mistake this house is making today”.

Earlier Court Decisions

In Prem Nath Kaul (1959) the Constitution Bench of the Supreme Court accepted the argument that the Article 370 was a temporary provision. But in Sampat Prakash (1969) the SC refused to accept Article 370 as temporary. The five-judge Bench said that ‘Article 370 has never ceased to be operative’; and that it was a permanent provision.

Manohar Lal Sharma v. Union of India

The Amendments made to Article 35A and 370 were questioned before the Supreme Court in Manohar Lal Sharma v. Union of India. The Advocates argued that the Supreme Court had given its earlier decision in Sampat Prakash, without taking into account the law laid down in Prem Nath Kaul. Thereon they called for a ‘reference’ to a larger bench since the present bench was of the same strength as Sampath Prakash and Prem Nath Kaul. The 5-judge bench of the Supreme Court, on 2^nd March 2020, rejected the request to refer these petitions to a larger bench holding that there was no such ‘oversight’ or ‘conflict’ as argued.

Conclusion

The Supreme Court will examine in Manohar Lal Sharma v. Union of India whether the abolition of Article 370 is unconstitutional and violates the basic structure of the Constitution. If the change made is held to be unconstitutional, several earlier Presidential Orders may have to be rendered invalid. Does the cue from the Order on ‘reference-argument’ sound that there is little chance to take a positive view on the Petition filed by the petitioner to set aside the amendments effected in the Constitution is the question now awaits answer.

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Article 370: Is There Little Chance for Supreme Court Interference

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