Art. 370, Pertaining to J&K -Turns the Constitution on Its Head

Saji Koduvath, Advocate, Kottayam.

PART I

Introduction

Special status had been given to Jammu & Kashmir by Article 370 of the Constitution of India.

Now, because of the changes made to the Constitution in 2019, the Special Status conferred on Jammu & Kashmir had been wiped out. The changes are brought-in by the following historic documents:

The Presidential Order

  • (i) On August 5, 2019, by the Presidential Order [CO 272 – The Constitution (Application to Jammu & Kashmir) Order, 2019], amended Article 367 (the interpretation clause). Thereby the ‘Constituent Assembly’ under Article 370(3) was amended as ‘Legislative Assembly’. (The Constituent Assembly had been dissolved 60 years back.) Consequently, the requirement of approval of the presidential order became the approval of the ‘legislative assembly’. Jammu and Kashmir was being under President’s Rule, the need for the consent of the ‘legislative assembly’ was not specifically needed, and satisfaction of the Parliament was enough.

Parliament Resolutions

  • (ii) Adoption of the said Presidential Order by the Parliament, by a Resolution, introduced  by the Union Minister for Home Affairs, Amit Shah, in Lok Sabha on August 6, 2019.
  • (iii) Adoption of the Resolution by the Parliament, for Repealing Article 370 of the Constitution of India, introduced  by the Minister Amit Shah, in Lok Sabha on August 6, 2019, and

The Jammu & Kashmir (Reorganisation) Act, 2019

  • (iv) The Jammu & Kashmir (Reorganisation) Act, 2019 was passed, the Bill of which was introduced  by the Home Minister, Amit Shah, in Lok Sabha on August 6, 2019.

Changes made to “Constituent Assembly” of the J&K

By virtue of the aforesaid enactments, Clause 1 of Article 370 that states that the Constitution of India will operate in the State of Jammu and Kashmir alone continued in the Constitution and the special status granted to Jammu and Kashmir was ceased.

Jammu and Kashmir: Status Changed

By the aforementioned documents, the Constitution of India was made applicable to the State of Jammu and Kashmir, in its entirety.  Further, the status of Jammu and Kashmir was changed by bifurcating the State, forming two separate union territories; namely, Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The Union Territory of Jammu and Kashmir was proposed to have a legislature; but,the union territory of Ladakh didn’t have one.

These developments triggered high controversy in the legal paddock. Some speak that the highest assurance of historical importance recognised by the nation, through its Constitution, to a constituent state, is betrayed. The Government says – it is a mark of national integration.

Crucial Legal Challenge

  • Article 370(3) provided that the President of India had the powers to amend or repeal the article by issuing a notification, based on a recommendation of Constituent Assembly of J&K.
  • But no change was recommended by the Constituent Assembly of the J & K State till it was dissolved in 1957.
    • Therefore the one crucial question would be – Can J&K Constituent Assembly (in Article 370) be read as J&K Legislative Assembly?
  • Even if it is assumed that the ‘recommendation’ can be given by the J & K State Legislature (by virtue of the present changes pursuant to the presidential Order), by a resolution, it remains a sheer fact that no Assembly was existing when the 2019 changes were made to the Article 370 (and the concurrence of the Governor was obtained, instead).
    • Therefore, the second crucial question would be – Can J&K Constituent Assembly (in Article 370) be read as recommendation of the Governor?
  • During 2019, Jammu and Kashmir was under ‘President’s Rule’. It was imposed when the Chief Minister, Mehbooba Mufti, resigned on June 19, 2018. (Mehbooba Mufti was leading a coalition and she had to resign since the BJP, a coalition partner, had withdrawn its support.)

The Government of India says that it is well within its rights to bring-in the changes it made, with the concurrence of Governor; and that similar decisions had been taken in the past.

Another point arises for consideration is the following –

  • Because no Constituent Assembly in J & K, can it be said – Art. 370 stands permanent and unamendable?

There had been fights and struggles since 1989. India blames Pakistan. Pakistan raises claim on the whole Kashmir.

What Kashmiris Fear 

Kashmir is a Muslim-majority Territory. It is said that 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 were 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 from purchasing property or settle there. And, they were proud of own Constitution and special status.

Kashmiris suspect that by the advent of Constitutional changes, Hindus would migrate to the state. This would sound well among Kashmiris. Former Jammu and Kashmir Chief Minister and leader of Peoples Democratic Party (PDP), Mehbooba Mufti, has responded that the change in law would alter the demography of Kashmir, where Muslims were majority and it would further alienate Kashmiris. AG Noorani (a lawyer, historian and author) says that the Presidential Orders which made the Constitution of India applicable to the State of Jammu and Kashmir in its entirety, was ‘an illegal decision, akin to committing fraud’. The leader of National Conference party, Omar Abdullah, said the move was unilateral and a total “betrayal of trust” of the people of Jammu and Kashmir.

Political Criticism

A senior leader in the opposition (Congress Party), Ghulam Nabi Azad said, in parliament, that the government had “wiped out Jammu and Kashmir’s identity”. Another Congress leader, P Chidambaram, a prominent lawyer, described the decision as a “catastrophic step” and warned, in Parliament discussions, 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”.

Stand of the Govt – It is a Historic step to Correct a Historic Blunder.

The Home Minister, Amit Shah, who introduced Jammu & Kashmir (Reorganisation) Bill, 2019 said in the Lok Sabha, on August 6, 2019, as under:

  • “I want to state that J&K is an inalienable part of India. There are no two versions about that”.
  • “Repealing article 370 is not a historic blunder, rather it is historic step to correct this historic blunder.”
  • Article 370(3) provides President of India has the powers to amend or repeal the article by issuing a notification, based on a recommendation of Constituent Assembly of J&K. J&K constituent assembly would be read as J&K Legislative Assembly. Similar changes to article 370 have been done in the past as well.
  • Now since President’s rule was in force in the state, implementation of article 370 would cease to exist when President of India issued the notification in this regard, after the Lok Sabha passed the resolution.
  • Parliament is the highest and fully competent body to make laws and bring resolutions regarding a state of India including J&K. There can be no question to this power of the Parliament.
  • For 70 years, people of India have harboured this aspiration in their hearts that Kashmir must be an integral part of India. Article 370 was the only roadblock to realize this goal.
  • The opposition in a way has questioned the competence of the Parliament by raising the point – how the Centre can take this step unilaterally when Kashmir is a bilateral issue between India and Pakistan and when the matter is pending in UN. “How can patriots of India who can sacrifice their lives for the country not get perturbed by such a question?”
  • In India, things do not function on whims and fancies but on laws.
  • The question of a referendum ended with the Pakistani aggression in 1965. Hence, the Government of India has full rights to take any decision regarding its territorial integrity. This was even agreed to by the UN.
  • “Had our forces given a free hand to deal with the situation, PoK would have been a part of India today”.
  • “I want to assure the people of J&K that the status of State would be restored once the situation normalises. Secondly, PoK and Aksai Chin are an inalienable part of JK and the seats are still part of the legislature.
  • J&K would have a Legislative Assembly with elected representatives and it is a misnomer that the administration would be run by the Centre.
  • Article 370 was originally a temporary provision. Because of article 370, the laws of Union of India did not apply to J&K, corruption and terrorism flourished there.
  • Removing article 370 has no communal agenda as a number of communities and religious groups are resident of J&K that are affected equally. Article 370 has perpetuated discrimination against the minorities including Sikhs, Buddhists admin others.
  • In the past 70 years over 41500 people have been killed. “Should we continue on the same path and let people die. Who is responsible for this state of affairs? Are not the youth of J&K and Ladakh require development. For how long would we deprive them only for vote bank politics.”
  • Such bold steps are not taken for vote bank but for the betterment of people of J&K and for three Nation.
  • Those who favour article 370 are in opposition to the Prevention of Child Marriage Act which could not be applied to J&K due to article 370. Similarly other laws like Right to Education, Land Accusation Act, Multiple Disability Act, Senior Citizens act, Delimitation act, Whistle Blower Protection act, laws enacted for empowerment of tribal, National Commission for Minorities, National Council for Teacher Education, among others, could not be applied to J&K.
  • The reason is simply that after President’s rule was applied in J&K, all corruption cases were opened and those who were at the receiving end are opposing the repealing of article 370.
  • Democracy was strangulated by the use of article 370 for 70 years. Today, after this government came to power, over 40000 panch and sarpanches are taking the democratic process forward and development has started.
  • Pakistan has misused the presence of article 370 to sow the seeds of separatism and terrorism in J&K.
  • “I appeal to all those who favour article 370, to ponder what benefits did the provision bring to the state. It only prevented development and facilitated terrorism there.”
  • Only by repealing this provision, we can bring the people to the mainstream and embrace them with open arms.
  • “J&K is the heaven on earth and I assure everyone that it would continue to remain so when all the laws of Union of India become applicable to the state.”

Two Earlier Court Decisions

In Prem Nath Kaul v. State of J & K (AIR 1959 SC 749) the Constitution Bench of the Supreme Court held that after the dissolution of the J & K Constituent Assembly, the President and Parliament cannot invoke Art. 370. But, Sampat Prakash v. State of J & K (AIR 1970 SC 1118) upheld the argument that Presidential Orders can be passed under Art. 370 even after the dissolution of the J & K Constituent Assembly.

According to Prem Nath Kaul v. State of J & K (AIR 1959 SC 749) the Article 370 was a temporary provision. But in Sampat Prakash v. State of J & K (AIR 1970 SC 1118) the Apex Court refused to accept Article 370 as a temporary provision; the five-judge Bench said that ‘Article 370 has never ceased to be operative’; and that it was a permanent provision.

No ‘Conflict’ between the Two Judgments

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 2nd March 2020, rejected the request to refer these petitions to a larger bench holding that there was no such ‘oversight’ or ‘conflict’ between these judgments, as argued. It was pointed out that the issues and circumstances in those decisions were different. (The earlier decision was in a Land Reform issue arose from a 1950 Act and the later one was in a criminal case.) One thing is definite from the above – that is, even though it may appear from Sampat Prakash v. State of J & K (AIR 1970 SC 1118) that this decision may stand in favour of the Government (and the changes made in 2019), it will not be binding on the five judge bench that hears the present challenge.

PART II

Arguments of the Petitioners, before the Apex Court, in a Nutshell

Several petitions were filed before the Apex Court, challenging the presidential order and the Jammu and Kashmir Reorganisation Act, 2019. The argument of the petitioners were over, after 10 days’ hearing, on August 23, 2023. The arguments of the petitioners can be summarises as under:

1. Article 370 could not have been revoked by Presidential Orders

  • Article 370 could not be revoked without the recommendation of the Constituent Assembly of the J&K. It is a condition precedent. This Constituent Assembly ceased to exist in 1957. It has already been made clear in Prem Nath Kaul judgement.
  • In any case, concurrence of the J & K legislature was necessary. Now, Parliament assumed the role of J & K’s Constituent Assembly. (When J&K was under President’s Rule, the powers of the Jammu and Kashmir Legislative Assembly were vested in the Union Parliament.)
  • It destroyed the federal system and autonomy guaranteed to J & K under the mandatory provisions of the Constitution.
  • Both the Union and J & K lost their opportunity to change the provision. (So, at present no valid mechanism for the abrogation of Art. 370.)
  • Present attempts are unilateral in nature.              

2. Article 370 was a Temporary Provision

  • Article 370 was a temporary provision since the J & K Constituent Assembly was a temporary body. Its persuasiveness ceased to exist after the J & K Constitution came into force. Therefore, the situation resulted from dissolution of J & K Constituent Assembly made Article 370, ‘permanent’ (in the sense, it cannot be invoked to make changes as done in 2019).

3. Parliament could not have assumed the role of J&K’s Constituent Assembly

  • If anybody has any power to take a decision on abrogation of Art. 370, it is the J & K Constituent Assembly; or in any case, it is the Legislative Assembly of the J & K. Anyhow, the role cannot be taken over by the Parliament.

4. Splitting of J&K into two union territories, unconstitutional

  • The State did not surrender, under the Instrument of Accession (IoA), its internal sovereignty; only external sovereignty (Foreign Affairs, Defence & Communication) is surrendered toto the Union of India. The abrogation of 370 and the internal sovereignty are unconstitutional.
  • Art. 3 of the Constitution of India requires the consent of the legislative assembly of the States before the state boundaries are altered.
  • The reorganisation and reduction of J&K, a State, into a Union Territory took place without the concurrence of the legislative assembly of J&K. It is against Article 3.
  • Art. 3 did not provide for the abolition of states. It will be violate Art. 1 which articulates the idea of a “Union of States”.
  • The present actions are violation of basic structure doctrine.

5. Art. 367, the interpretation clause, could not have been invoked to alter the meaning of “Constituent Assembly” and indirectly amended Art. 370

  • By C.O. 272 the President replaced “Constituent Assembly” with “Legislative Assembly”. It was made by invoking interpretation clause, Art. 367. It is unconstitutional. Art. 367, the interpretation clause, could not have been invoked to alter the meaning of “Constituent Assembly” and indirectly amended Article 370. Art. 370 could have been revoked only with the ‘recommendation’ of the Constituent Assembly of the J&K (when it existed).

Arguments for Union of India, in a Nutshell

Attorney General R. Venkataramani and Solicitor General Tushar Mehta started the arguments for Union of India on August 24, 2023.

Their arguments can be summarised as under:

  • Attorney General Shri. R. Venkataramani submitted that the changes made to Article 370 were following the “due process” of law; and that by the Instrument of Accession J & K surrendered sovereignty to India.
  • Solicitor General Shri. Tushar Mehta argued that Article 370 did not confer special status to J & K.
  • The Solicitor General argued that the “duality” had been made use by “forces against India.”
  • According to the Mountbatten Plan, the princely states had the option to join India or Pakistan, and there was no option to stand independent. There was the Instrument of Accession when the document made. Shri Mehta pointed out that the Constitution of J & K was an Act for internal governance alone.
  • Mehta further stressed that the ‘autonomy’ attached to J & K was only that recognising the ‘federal structure‘; and affirmed that it was a part of India. It was similar to that vest with other states through List II (State List) of the Seventh Schedule of Constitution of India, the “Union of States”.
  • Mehta then read Proclamation for the State of J & K, made by the ruler Yuvraj Karan Singh in November 1949 which read as under:
    • “That the provisions of the said (Indian) Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State.”
  • Mehta claimed that the Abrogation of Article 370 was meant for providing the people of J & K rights which people of the rest of the country enjoyed. The present situation deprived the people of J & K the welfare schemes of Union of India.
  • Article 370 was actually a “temporary” provision. According to Mehta,  the words “constituent assembly” can be read interchanged with “legislative assembly”. On dissolution of the J&K Constituent Assembly, the provision became invalid or inoperative; the power of abrogation of Art. 360 became vested with the President. And, now the President has ‘plenary power’.
  • President had invoked Article 367, earlier, to replace “Sadar-i-Riyasat” with “Governor” in Article 370. “Constituent Assembly” and “Legislative Assembly” have been used interchanged, in several occasions and purposes.
  • Mehta  also maintained that Abrogation of Article 370 was with a view to rectify the previous mistakes.  He pointed out that the Presidential Order of 1954 diluted various provisions of the Constitution, including the fundamental rights, when the Constitution was made applicable to J & K.  He buttressed that “the Government has the right to correct its mistakes”
  • The statehood of the J&K will be restored as soon as the law and order situation comes to “normalcy”. The Union has the power to reorganise a State as done now.
  • The sovereignty was completely surrendered to India by the Instrument of Accession (IoA).

Senior Advocate Harish Salve

Senior Advocate Harish Salve, pointing out the difference between ‘concurrence’ and ‘recommendation’ in Art. 370, placed the following forceful argument-

  • When ‘concurrence’ is given in Article 370(1) and (2) of the Constitution, the word ‘recommendation‘ is used in Proviso to Article 370(3).
  • Article 370(3) reads as under:
    • “(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.”
  • It has great significance. They are –
    • (i) For abrogating the Article 370(3), nothing more than a mere ‘recommendation‘ from the Constituent Assembly of Jammu &Kashmir was required. (Amendment procedure of Constitution was not to be complied with.)
    • (ii) That recommendation was required as long as the Constituent Assembly of Jammu & Kashmir existed. Thereafter, the President (himself) can do it (of his own) – without ‘recommendation’.
    • (iii) It was the result of the political compromise arrived at between India and J&K at that time.
    • (iv) If the power under the proviso can be exercised in this way, then the presidential order 2023 is a valid one.
  • The historical materials would show that Article 370(3) was a safety valve. “That, if the political compromise in Sub-Article 1 fails to achieve the purpose, at any time it might become necessary to pull the plug.”
  • Salve emphasised – “Now, if one looks at it that way, the whole thing falls in place. We kept, the framers of the Constitution kept, with the President the power to do away with this special arrangement.”

The arguments of both sides were over by September5, 2023; and the case is taken for Judgment.

End Notes – I

BRIEF HISTORY

British Restored 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 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.

End Notes – II

Changes made to the Constitution

The Changes made to the Constitution, by the Presidential Order on 5th August, 2019, led to a legal battle in the Supreme Court of India trading following events-

  • On August 5, 2019 itself, the Rajya Sabha passed a Statutory Resolution under Article 370(3) for abrogation of Article 370, except Clause 1.
  • On August 9, 2019, the Parliament passed the Jammu and Kashmir Reorganisation Act, 2019.  This Act bifurcated the State of Jammu and Kashmir into two Union Territories – J & K and Ladakh. The presidential order and the Jammu and Kashmir Reorganisation Act, 2019 diluted Article 370 and revoked J & K’s special status.
  • The presidential order and Reorganisation Act, 2019 are challenged, by various petitions, before the Supreme Court of India. On August 28, 2019, the then Chief Justice of India, Rajan Gogoi, J. referred the matter to a five-Judge Constitution Bench.
  • Now, from August 2, 2023, the Constitution Bench, headed by the Chief Justice of India, considers this matter under the Caption “In Re: Article 370 of the Constitution”.
  • The argument of the Petitioners were over, after 10 days’ hearing, on August 23, 2023. Arguments for Union of India began on August 24, 2023, and continued on August 28, 2023.

Important list of dates

August 5, 2019

  • President Ram Nath Kovind issued presidential order CO 272 and allowed the Union to amend Article 370.
  • Rajya Sabha passed a Statutory Resolution under Article 370(3) for abrogation of Article 370, except Clause 1.
  • This Order allowed the Union to amend Article 370 and split the state into two Union territories.

August 6, 2019  

  • Presidential Proclamation, CO 273, putting the Rajya Sabha’s recommendation.
  • It removed the special status awarded to Jammu and Kashmir & diluted Article 370

August 9, 2019  

  • Parliament passed the Jammu and Kashmir Reorganisation Act, 2019.
  • This Act bifurcated the State of Jammu and Kashmir into two Union Territories—J&K and Ladakh

August 28, 2019,

  • A 3-Judge Bench led by former CJI Rajan Gogoi referred the case to a 5-Judge Constitution Bench.

October 1, 2019,             

  • 5-Judge Constitution Bench of the Court comprising Justice N.V. Ramana, S.K. Kaul, R. Subhash Reddy, B.R. Gavai and Surya Kant decided to hear the case from November 14th, 2013.

March 2, 2020,

  • The Bench refused to refer it to a larger Bench.

July 3, 2023,

  • The Supreme Court listed the matter to a Constitution Bench led by Chief Justice D.Y. Chandrachud.

July 11, 2023

  • The Bench listed the matter for hearing from August 2, 2023.

End Notes – III

Art. 370 of the Constitution of India

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 Maharajas 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.

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Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Easement

Stamp Act & Registration

Will

Arbitration

Divorce

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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