CONSTITUTIONAL DYNAMICS: ANALYZING THE ABROGATION OF ARTICLE 370 IN INDIA

/ Abott Law Office

By Himansi Gupta (Associate)

INTRODUCTION

Article 370 of the Indian Constitution outlined the legal and constitutional arrangement between Jammu and Kashmir and India. Its existence was a promise that the Union recognized Jammu and Kashmir’s unique history and the troublesome circumstances under which it became a part of India.

On December 11, 2023, the Hon’ble Supreme Court of India issued a momentous ruling regarding revoking Articles 370 and 35A of the Indian Constitution. The Hon’ble Court’s ruling has affirmed the sovereignty and integrity of India, a matter of great importance to every Indian. The Supreme Court noted that the decision made on August 05, 2019, to revoke Article 370, which terminated the special status of the former State of Jammu and Kashmir, was intended to strengthen constitutional unity rather than promote division. The Court has acknowledged that Article 370 was not permanent in nature.

The bench pronounced three judgments. One was by the Chief Justice of India Dr. DY Chandrachud on behalf of himself, Justice B.R. Gavai, and Justice Surya Kant. Another was by Justice Kaul, and Justice Khanna concurred with both the Judgments. While Justice Kaul concurred with CJI Chandrachud’s judgment, he said that he disapproved of the use of Article 367 to amend Article 370 of the Indian Constitution.

ANALYSIS

Historical Background of Article 370

Jammu and Kashmir is famously called a “Paradise on Earth” because of its charming beauty and geographical location. The State has a long history and has gone through various phases. One could argue that 1846 is an important landmark in the history of Jammu and Kashmir. It was this year that the first Anglo-Sikh war had just concluded in which the British emerged victorious. Raja Gulab Singh who was hitherto administering Jammu under the suzerainty of Sikh Empire, was also given an additional territory of Kashmir to be governed under the suzerainty of the British Government. Hence the Dogra rule was born in Kashmir with Maharaja Gulab Singh as its first Dogra ruler and a dynasty was born. In 1927, Maharaja Hari Singh, the last Dogra ruler of Jammu and Kashmir enacted legal provisions for the people of Jammu and Kashmir, so that no ‘outsider’ could own any land in the State and they could have the right to Government offices. This is the principle on which later Article 35A was drafted.

India gained its independence from British rule on August 15, 1947, but with the partition of British India, Lord Mountbatten who was the last governor-general of India announced the partition plan during the period of June 1947 also called “Mountbatten’s Partition Plan”, in which the princely states were given choices to join any of the two dominions, either India or Pakistan. At that time there were a total of 565 princely states. Maharaja Hari Singh who was the last Dogra ruler of Jammu and Kashmir did not want to join any of the dominions and wanted to remain independent. At that time the process of integration of the princely states had started. The Indian Government integrated with almost all the states but faced challenges from four princely states. Those states were Hyderabad, Junagarh, Manipur, and Jammu and Kashmir.

When the time came for Jammu and Kashmir to integrate with the Indian Union, Maharaja Hari Singh delayed signing the “Instrument of Accession” because he wanted to remain independent. Shortly after the Independence, there emerged various conflicts between India and Pakistan, but the Kashmir conflict was one of the long-lasting conflicts between these two countries which always separated these two countries and hindered their relations from getting better.

Pakistan invaded Jammu and Kashmir in August 1965. The codename for this operation was “Operation Gibraltar”. Pakistan’s leadership specifically chose this name to draw a parallel to the Muslim Conquest of Portugal/ Spain that was launched from the port of Gibraltar which is located at the southern tip of the “Iberian Peninsula”. Pakistan’s soldiers disguised themselves in the form of local Pashtuns and entered the Indian-administered Jammu and Kashmir with the goal of fomenting an insurgency amongst the Muslim-majority population in the Kashmir valley. Maharaja Hari Singh asked for help from the Indian Government to seek protection from these tribal infiltrators. For this,  Maharaja Hari Singh signed the Instrument of Accession with the Government of India. The conditions on which IOA (Instrument of Accession) was signed were that only Defense, External Affairs, and Communication would be controlled by the Indian Government, and except from these all-other matters would be controlled by the people of Jammu and Kashmir.

The consensus was also made that once the situation would be normalized, the views of the people of Jammu and Kashmir would be ascertained about their future. Pandit Jawaharlal Nehru appointed Mr. Gopalaswamy Ayyangar, an IAS Officer, who drafted Article 370, which defined the relations between India and J&K. But Dr. B.R. Ambedkar always opposed this Article because he thought that it would create a difference between other states. While signing the Instrument of Accession (IOA), the Indian Government also promised that it would conduct a plebiscite in the state to know the opinions of the people of the state.

The Maharaja with the threat from the Pakistani infiltrators went to Jammu. Meanwhile, Mr. Sheikh Abdullah, the founder of the Jammu and Kashmir Muslim Conference which was later renamed as All J&K National Conference in 1939, in order to represent all the people of the state, became the Prime Minister of Jammu and Kashmir in 1948. It is argued that Sheikh Abdullah supported the accession of the Princely states to the Indian Union because he wanted to get rid of the Maharaja’s rule. Around this period Pandit Jawaharlal Nehru and Sheikh Abdullah signed an agreement known as the “Delhi Agreement” to improve the relations between the state and the Union.

Jawaharlal Nehru promised the citizens of India that Article 370 is just a temporary provision and will be deleted over time. The framers of this Article did not mention the time period, like one month, one year, or one decade for its validity. Inequality began in India from here. Sheikh Abdullah had successfully persuaded the majority of the people of Jammu and Kashmir to accede to India so that the dream of New Kashmir or “Naya Kashmir” could be accomplished. After all, the leadership in Jammu and Kashmir was not ready to allow any kind of interference in the internal autonomy of the State.

After a while of the “Delhi Agreement” in 1952, the conscience of Sheikh Abdullah woke up and he realized that he had made a big mistake by acceding to the Indian Union because they were trying to deteriorate the special status given under Article 370, but before he could make a move against it, he was removed from the seat of the authority and was also imprisoned on August 09, 1953 by the President of Jammu and Kashmir or “ Sadar-i-Riyasat” and Bakshi Ghulam Mohammad was appointed as the Prime Minister of Jammu and Kashmir.

Erosion of the special position of the state was reached when the Constitution of Jammu and Kashmir was amended on April 10, 1965, and the positions of Sadr-i-Riyasat and Prime Minister were changed into the Governor and the Chief Minister respectively. In 1975, the autonomy of Jammu and Kashmir was further deteriorated under the famous “Kashmir Accord”, 1975 and was later on approved by the Parliament of India. It contained the following –

  1. The State of Jammu and Kashmir which is a constituent unit of the Union of India shall in its relation with the Union, continue to be governed by Article 370 of the constitution of India.
  2. The residuary Powers of legislation shall remain within the State; however, Parliament will continue to have the power to make laws relating to the prevention of activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the National Anthem and the Indian Constitution.
  3. Where any provision of the Constitution of India had been applied to the state of Jammu and Kashmir with adaptations and modifications, and such adaptations and modifications can be altered or repealed by an order of the President under Article 370, etc.

Abrogation of Article 370 by the Parliament

On August 05, 2019, the Union Home Minister, Shri Amit Shah announced the abrogation of Article 370 and Article 35A of the Indian Constitution which granted special status to the erstwhile state of Jammu and Kashmir.

Article 35A of the Indian Constitution empowers the Jammu and Kashmir state legislature to define the state’s permanent residents and their special rights and privileges. Article 35A was not part of the original Constitution of India adopted in 1949, but was later added to the Constitution of India through the Presidential Order of 1954 with the concurrence of the state government of the day.

The Union Ministry of Home Affairs also introduced two bills and two resolutions regarding Jammu and Kashmir in Lok Sabha on the same day i.e., August 05,  2019. These were as follows: –

  1. Constitution (Application to J&K) order, 2019 (Reference of Article 370[1] of Constitution of India)- issued by the President of India to supersede the 1954 order related to Article 370. In exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President of India, with the concurrence of the Government of the State of Jammu and Kashmir, has issued such an order.
  2. Resolution for Repeal of Article 370 of the Constitution of India.
  3. Jammu and Kashmir Reorganization Bill, 2019.

Article 370(3) provides the President of India the powers to amend or repeal the article by issuing a notification based on a recommendation of the Constituent Assembly of Jammu and Kashmir. The President of India signed the Constitutional (Application to Jammu and Kashmir) Order 2019, issued on August 05, 2019, regarding Article 370(1), under which all the provisions of Article 4 of the Constitution of India would be applicable to Jammu and Kashmir. Also, the Jammu and Kashmir Constituent Assembly would be read as the Jammu and Kashmir Legislative Assembly.

Similar changes have been made to the Article 370 in the past. Now since the President’s Rule was in force in the State, implementation would cease to exist when the President of India issues the Notification in this regard. So, the President of India on the recommendation of the Parliament of India declared that from August 06, 2019, all clauses of Article 370 shall cease to be operative.

Unravelling the Jurisprudential Tapestry by the Supreme Court

Arguments

The hearing for the matter began on August 02, 2023, and continued for 16 days, during which the court heard several arguments, including the constitutional validity of the Centre’s decision to abrogate Article 370 and the validity of the Jammu and Kashmir Reorganization Act that split the former state into two Union territories i.e., Union Territory of Jammu and Kashmir, and Union Territory of Ladakh. The court also heard arguments challenging the imposition of the Governor’s rule in Jammu and Kashmir in June 2018 and the imposition of the President’s rule in the former state six months later.

The petitioners argued that the provision of Article 370 was permanent in nature and that Jammu and Kashmir’s Constituent Assembly did not want its abolition. Moreover, they argued that Article 356, which imposes the President’s rule in the state, was misused. Whereas, the Centre had contended that Article 370 was not a permanent provision and that the government has no intention to change the special provisions in the Constitution, that apply to the country’s northeastern states. In response to the petitioners’ argument on how the Parliament could play the role of the Constituent Assembly, the Centre had contended that the term “Constituent Assembly” in the provision can be read as “Legislative Assembly”.

The Union government argued that the abrogation of Article 370 brought normalcy to Jammu and Kashmir. The Modi government had also informed the court that it was ready to hold elections in Jammu and Kashmir, but could not specify a timeline for restoring its statehood.

The Supreme Court’s Verdict

The Petitioners had argued that Article 370 had become a permanent feature of the Indian Constitution from the moment the Constituent Assembly of Jammu and Kashmir formally dissolved in 1957. As a matter of fact, Article 370 was the basis of the Jammu and Kashmir Constitution. It was termed a “temporary provision” because it was meant to be ratified by the Jammu and Kashmir Constituent Assembly. By not recommending the abrogation of the provision before its dissolution, the Assembly had endorsed its continued existence in the Indian Constitution to govern this unique federal relationship.

During the hearings, the Hon’ble Supreme Court had observed that the Centre could not justify the means that were used to abrogate Article 370, merely by pointing to the ends achieved through the legal changes.

The Supreme Court upheld the abrogation of Article 370 in the case of SR Bommai vs. Union of India (1994 AIR 1918) in 1994. The court also relied on the 2017 matter of Santosh Kumar vs. State of Jammu and Kashmir & Ors., which stated that Jammu and Kashmir had a special status due to historical reasons. 

The court also relied on the 2016 case of SBI vs. Zaffar Ullah Nehru, which stated that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir. The reliance was made on the 1968 case of Sampat Prakash vs. State of Jammu and Kashmir (AIR 1970 SC 1118), which stated that Article 370 could be invoked even after the dissolution of the Constituent Assembly of Jammu and Kashmir. The court also relied on the case of Prem Nath Kaul vs. Union of India (AIR 1959 SC 749), which stated that Jammu and Kashmir had retained some part of its sovereignty. Another matter relied upon was the case of Raghunathrao Ganpatrao vs. Union of India ([1993] INSC 62), which upheld the act of abrogation once it was backed by a constitutional amendment.

It was also observed that Article 35A of the Constitution, which was also repealed in 2019 by the Centre, took away the fundamental rights of non-residents of Jammu and Kashmir. Article 35A empowered the legislature in the former state to define its permanent residents. CJI Chandrachud had said during the hearings that the law curtailed the rights to equal opportunity of state employment, acquire property, and to settle in Jammu and Kashmir for the non-residents.

CONCLUSION

Ever since the abrogation of Article 370, there has been a significant decline in violence in Jammu and Kashmir. According to official data, the number of terrorist incidents has decreased by over 50% and security forces have killed over 300 militants in the last four years. This can be attributed to numerous factors, including increased security measures, better intelligence gathering, and a decline in public support for militancy.

Numerous initiatives have been implemented by the government of India to boost economic development in Jammu and Kashmir, such as the Prime Minister’s Development Package (PMDP) and the Industrial Development Scheme (IDS). These initiatives have led to an increase in investment, job creation, and economic growth in the region. The Union Territory witnessed tax revenue growth of 31%. During the year 2022-23, the GSDP of Jammu and Kashmir grew at 8% at constant prices, as against 7% at the national level. The government has also invested heavily in infrastructure development in Jammu and Kashmir, such as the construction of new roads, bridges, tunnels, and power lines. These improvements have made it easier for people to travel and to do business within the region.

The number of tourists visiting Jammu and Kashmir has also increased since the abrogation of Article 370. This is due to improved security, better marketing, and the launch of new tourism initiatives. According to a report, Jammu and Kashmir had seen a total of 1.62 crore tourists in 2022, the highest in India’s Seventy-Five years of independence. The recent judgment by the Supreme Court has not only upheld the principles of ‘Ek Bharat, Shreshtha Bharat’, but it has also served as an impactful reminder of the importance of unity and a collective dedication to good governance. This decision showcases the court’s commitment reinforce the values that define us as a society.

REFERENCES

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