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SUPREME COURT JUDGMENT ON ARTICLE 370 ABROGATION: ANALYSIS

By Aryan



article 370 and supreme court

“Article 370 temporary, J&K has no internal sovereignty” : These lines by CJI Chandrachud echoed in the Supreme Court as the five judge bench comprising of Justices – CJ Chandrachud, Justice Kaul, Justice Khanna, Justice Gavai and Justice Kant upheld the unexpected imposition of Presidential Rule and abrogation of Article 370. In this article we are going to analyse the socio – legal elements which led to constitution and then abrogation of Article 370 and the judgment of Supreme Court in the present matter.


INCORPORATION OF ARTICLE 370 IN THE INDIAN CONSTITUTION AND ITS PURPOSE

The state of J&K’s original accession was founded on the principles of defence, foreign affairs and communications. All the princely states were asked to send their representatives to Constituent assembly of India for its holistic formulation and to involve everyone in the process. The princely states were also encouraged to formulate their own constituent assemblies (including J&K) to communicate ideas more effectively. Many states just forthwith accepted Indian constitution and moved on with it. However in the case of J&K the representatives requested that only those provisions of the Indian Constitution which originally corresponded to Instrument of Accession(IoA) should be implemented in the state, rest would be decided by the state’s constituent assembly with proper deliberations. Accordingly, Article 370 was incorporated inIndian Constitution, which stipulated that other articles of Constitution that gave powers to Central Government would be applied to J&K only with the concurrence of the State's constituent assembly. This was a "temporary provision" added in Part XXI[1] as in its applicability was intended to last until the formulation and adoption of State's constitution. However, the State's constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370. Thus Article 370 was considered to be permanent provision until 2019. Clause 7 of IoA signed by Maharaja Hari Singh declared that the state could not be compelled to accept any future Constitution of India without consensus. The state was within its right to formulate its own constitution. Constitutional scholar A.G. Noorani describes Article 370[2] as a “Solemn pact” between the Central and state government. Article 370 exempted J&K from the complete applicability of the central laws formulated at the helm of power without its concurrence. But slowly post 1957, this concurrence attenuated and the other provisions were implemented in the state with its “concurrence”. The repeated Presidential orders have continuously eroded the powers of Article 370 and State legislative assembly over the course of time.

 

POST 2014 SCENARIO

 After the election of NDA government at the helm of central government powers, it had pledged in its manifesto to integrate J&K with the whole of India by abolishing Article 370. But in 2015, the J&K High Court ruled that Article 370 cannot be repealed, abrogated or amended in any way. It explained that Clause (3) of the Article conferred the power of recommendation on  Constituent assembly of J&K but it dissolved in the year 1957 itself without referring to Article 370 therefore Article 370 has achieved a status of permanence in the Constitution. Even the Supreme Court voiced a similar opinion regarding the impossibility with the tinkering of Article 370 of Constitution. The PDP was in power with a coalition with the BJP and Mehbooba Mufti as Chief Minister. PDP lost power in 2018 when BJP withdrew its support and Mufti had to resign. The very next day the Governor of the State issued a proclamation under Section 92 of J&K Constitution[3] through which Governor assumed all power to exercise executive and legislative functions in the state. A proclamation under this heading requires the concurrence of President (which had been rightfully done in this case) under Clause(5) and under Clause(3) of Section 92, this proclamation ceases to exist after the lapse of 6 months period. On 21 November 2018, the Governor dissolved the legislative assembly as per Section 53(2) of the Constitution of J&K[4].

On 28 November 2018 the Governor sent a report to President recommending the invocation of Article 356(Emergency) in state as the six months impasse is going to end. Accordingly on 19 December 2018 the President issued a proclamation under Article 356 promulgating Presidential Rule which was approved by LS on 28 December 2018 and by RS on 3 January 2019. The Proclamation inter alia declared that the powers exercisable by the Governor of the State would now be assumed by President. It made the powers of the legislative action exercisable under the direct authority of Parliament of the country. Also the first and second proviso of Article 3 were suspended which effectively meant that Parliament could alter the boundary of J&K without expression of opinion by legislative assembly of the state.     

The NDA government again won with majority in 2019 elections and they had included the abrogation of Article 370 in the Constitution similar to last year. From here on, the procedure for bypassing Article 370 began.

 

2019 ACTIONS AND CHANGE OF STATUS OF J&K

The Proclamation issued by the President was extended till 3 July 2019 with the consent of both Houses of Parliament in accordance with use of power provided in Article 356(4) which delineated procedure for the extension of Emergency period.

On the fateful day of 5 August 2019, the President promulgated CO 272 (Constitutional Order 272) 2019, through which the Constitution of India superseded all previous Constitutional Orders which made only certain articles of Constitution of India applicable to J&K. Now whole of the Constitution would be applicable to J&K as well and the original Constitution of J&K stood abrogated. This CO 272 added Clause (4) in the interpretative Article 367 whose original text needs a special mention    here :-

 “(4) For the purposes of this Constitution as it applies in relation to the State of J&K

 (b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of J&K, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;

 (d) in proviso to clause (3) of article 370 of this Constitution, the expression “Constituent Assembly of the State referred to in clause (2)” shall read “Legislative Assembly of the State”.”

The arbitrary nature of this clause and use of it to bypass Article 370 was pointed out by the SC as is aptly clear from the text. On the very same day,  Parliament undertook the following exercise by assuming the powers of  legislature. Amit Shah recommended to President in the RS that all clauses of Article 370 should cease to operate despite anything contrary contained in Article 152 or Article 308, or in Constitution of J&K or any written piece of authoritative action. On 6 August 2019, pursuant to the recommendation the President issued CO 273 2019 through which Article 370 ceased to operate w.e.f from the date of issuance of CO 273. The RS and LS also passed the J&K Reorganisation bill, 2019 which bifurcated the state into two Union Territories - J&K and Ladakh. This was brought into effect w.e.f 31 October 2019 with the Presidential assent to the proposal.

 

SUPREME COURT’ S JUDGMENT ANALYSIS

The Supreme Court held that J&K did not hold any sovereignty of its own. It relied heavily on the proclamation issued by Maharaja Karan Singh one day before adoption of the Constitution of India, about the superiority of the Constitution of India over the relations subsisting between Centre and the state. The proclamation for the formation of Constituent Assembly was given by the Maharaja on 20 October 1950 therefore the Constitution of J&K would not apply. This also negated the effect of Paragraph 7 of the IoA which stated that “no future Constitution of India” shall be applicable on J&K. Section 3 of J&K Constitution explicitly states that the State is an integral part of the Country with the prohibition of any amendment to this section by Section 147. The SC also asserted that the preamble of J&K constitution does not have any essence of sovereignty. The SC stated that according to Article 370(1)(c), Article 1 applied to J&K which means it is the core part of India and though the petitioners argued about asymmetrical federalism, the Court rejected this argument and held that autonomy provided due to special provisions does not mean sovereignty from the rules of the country. However, Justice Kaul and Khanna cited the case of Prem Nath Kaul v. UOI[5] in which the decision of the Yuvraj Karan Singh (who was conferred power by Maharaja) was held to be legal and the sovereign nature of J&K was accepted.

The SC declared Article 370 to be a temporary provision. The CJ relied on the fact that the Article was couched in Part XXI (Temporary and transitional provisions) of the Constitution. The Court rejected arguments of the petitioner regarding the prerequisite of “recommendation of Constituent Assembly of J&K” in the proviso clause 3 and held that the circumstances hovering the state should also be seen and it is just a ratification process. The President has the full authority to abrogate Clause(1) with intent of integrating J&K to India, which the Constituent Assembly of India also intended.

The SC decided not to interfere with the Presidential powers to issue proclamations under Article 356 as it was not pleaded in plaint. The core challenge pertained to the proclamations itself and not the power to issue them. The CJ cited the SR Bommai [6] which held that this power is sparingly used in cases where the constitutional machinery has failed in the state. There should be reasonable nexus between the decisions towards restoring the normal conditions of the state without any malafide intention(which the Court concurred was not present in this case) on the part of state. The numerous actions taken by President during this period cannot be challenged before the Judiciary as it would bring the state to standstill. Therefore they concurred that the President has the power to make irrevocable changes to a state if the intention is towards restoration which the judiciary would scrutiny upon.

The petitioners then argued that according to Article 356(1)(a), the President shall assume the legislative powers of the state only. Therefore the Constituent (law making) powers cannot be unilaterally taken away from J&K Constituent assembly. The Court rejected this argument and held there is no distinction between law making and non law making powers.

The other point regarding the bypass of Article 370(3) with the help of amendment to Article 367 by CO 272 was held to be unlawful by the Court. It cited Maqbool Damnoo Case[7] through which similar amendment was made but it was held to be lawful because it did not alter the core essence of Article 370 unlike in the present case. But curiously, the SC even after this assessment did not abrogate the Article and I believe the SC has erred on this point.

The SC did not touch the substantive point regarding J&K Reorganisation bill and held that it will discuss the contours regarding Article 3 in a separate case if it emerges. This is a big drawback because the SC has given the Central Govt. free hand to retrograde the status of a State to a U.T. and administrate it in its own arbitrary way.

Justice Kaul in the end also rang a humanistic note by signifying the need for establishment of Truth and Reconciliation board for recording the human violations and bridging gap between the distrust of the youth and the Government.  


The author of this article is Aryan, a first-year BALLB student at Jamia Milia Islamia.

 

[1] The Constitution of India, 1949 (Part XXI)

[2] A.G. Noorani, Article 370:A Constitutional History of J&K p. 4 (2011).

[3] The Constitution of Jammu & Kashmir, 1956 (Part VI), s. 92(1)

[4] The Constitution of Jammu & Kashmir, 1956 (Part VI), s. 53(2)

[5] Prem Nath Kaul v. Union of India, 1959 AIR 749.

[6] S.R. Bommai v. Union of India, 1994 SCC (3).

[7] Maqbool Damnoo v. State of Jammu Kashmir, 1972 AIR 963.

 

This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).



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