Introduction:

A Constitution Bench of the Supreme Court upheld the President of India’s authority to revoke Article 370 of the Indian Constitution on December 11, 2023, with a majority decision. In addition to depriving the state of its unique advantages, this abrogation in August 2019 caused the former state of Jammu and Kashmir to split into the Union Territories of J&K and Leh. According to the Supreme Court, Article 370 was a temporary solution to ease the former princely state’s admission to the Union of India during intense internal conflict and external attack.

The Chief Justice of India, DY Chandrachud, together with Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant made up the five-judge constitution panel that delivered the decision. According to the SC, preparations shall be made to hold assembly elections by September 30, 2024. The petitioners argued that because the abrogation was carried out during the President’s Rule, the Union government could not act in Jammu and Kashmir which would have irrevocable implications. However, the Supreme Court rejected this claim. In addition, the Supreme Court ruled that Jammu and Kashmir lost some of its sovereignty when it joined India.

Let us have a brief look into the timeline of Article 370.

 

1947: Instrument of Accession

The final monarch of Jammu and Kashmir, Maharaja Hari Singh, signed the Instrument of Accession to the Dominion of India on October 26, 1947. The Maharaja consented to give the Parliament authority over three areas and to restrict the Union’s jurisdiction to communications, defence, and foreign affairs.

1950: India becomes a Republic

The Indian Constitution took effect on January 26, 1950. Article 370 established three major structures. In general, Article 370 said that without the “concurrence” of its government, India would not enact legislation in Jammu & Kashmir that went beyond the parameters specified in the Instrument of Accession.

It further stated that Jammu & Kashmir would be exempt from all provisions of the Constitution, except Article 370 and Article 1, which established India as a “Union of States.” Any article of the Constitution may be “modified” or “exceptionally” applied to this State by the President of India, but only after “consultation with the Government of the State.” Thirdly, changes or repeals to Article 370 would require the approval of the Jammu & Kashmir Constituent Assembly.

1950: 1^st Constitutional Order under A370

Following this, under Article 370, President Rajendra Prasad of India issued the Constitution (Application to Jammu and Kashmir) Order, 1950, outlining the breadth and totality of the powers that the Parliament would wield in Jammu and Kashmir. The Union would oversee communications, external affairs, and state defence, as per the terms stated in the Instrument of Accession. The precise topics that would come under these headings were specified in the President’s directive. The Order also included Schedule II, a list of the Constitution’s amended clauses that would be applicable to the State.

1951: Constituent Assembly of J&K

On October 31, 1951, an autumn day in Srinagar saw the inaugural meeting of the 75 members of the Jammu and Kashmir Constituent Assembly. At the time, Sheikh Abdullah was the Prime Minister of Jammu and Kashmir, and they belonged to the National Conference Party. They set out to write Jammu & Kashmir’s constitution.

1952: Delhi Agreement

The Government of Jammu & Kashmir and the Government of India signed the Delhi Agreement in 1952. The accord dealt with the residual powers (Article 248) that the Parliament had and utilised, which did not fall under the purview of the State or Concurrent Lists. The Delhi Agreement specified that the Government of Jammu and Kashmir would hold such authority. In other states, the Union parliament usually has full authority over all residual authorities.

The Delhi Agreement also gave the state access to the Indian Constitution’s basic rights, citizenship, trade and commerce, union elections, and legislative authority. In the Constituent Assembly, Prime Minister Sheikh Abdullah declared, “The Residuary powers vested in the Centre with respect to all States, except Jammu and Kashmir, are vested in our State itself.” This stance is consistent with both the Instrument of Accession, which forms the basis of Article 370 of the Indian Constitution, and the Article itself. We have always maintained that the people are the ultimate wellspring of sovereignty. Therefore, all power may originate from the people.

1954: Implementation of Delhi Agreement under Constitutional Order

President Rajendra Prasad issued the Presidential order to carry out the provisions of the 1952 Delhi Agreement of the Indian Constitution on May 14th, 1954. The presidential decree established Article 35A, which granted permanent residents of Jammu and Kashmir exceptional rights, and safeguarded Jammu and Kashmir’s territorial integrity. The Jammu and Kashmir Constituent Assembly approved the aforementioned order.

1957: J&K’s Constitution into force

Following a five-year process, the Jammu and Kashmir Constitution was finally signed into law on January 26, 1957, with the proclamation, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India.” The day before, on January 25, 1957, the Constituent Assembly of Jammu and Kashmir disbanded at noon, having fulfilled the purpose for which they had been formed. “Today this historic session ends and with this, the Constituent Assembly is dissolved,” declared the Honourable Gulam Mohammed Sadiq, President of the Constituent Assembly. There was no specific suggestion to weaken Article 370 by the Constituent Assembly.

Further we will look into some case laws which challenged the implementation of Article 370 but the Supreme court verified the interpretation of its provisions in all the instances

1959: Prem Nath Kaul vs. UOI

In 1959, the Supreme Court emphasised the importance of the “final decision of the Constituent Assembly” of Jammu and Kashmir under Article 370(3) in the case of Prem Nath Kaul v. Union of India. This clause requires the Constituent Assembly to provide its consent before the President may make a statement. The petitioners contested the legitimacy of the Big Landed Estates Abolition Act, 1950, arguing that the Maharaja of Jammu and Kashmir, who passed the Act, lacked the necessary legislative authority. The Maharaja has the legislative authority to enact the Act, the Supreme Court said.

1962: Puranlal Lakhanpal vs The President of India

In 1962, a Presidential Order in Puranlal Lakhanpal v. The President of India permitted Jammu and Kashmir to have direct elections for state legislature representation, but only indirect elections for the Lok Sabha. With regard to the Lok Sabha’s composition, the Order amended its application to omit Jammu and Kashmir. Petitioners objected to the Order, arguing that the President may only alter “minor” aspects of the Constitution. The Supreme Court maintained the Presidential Order, ruling that an amendment falls within the broad definition of “modification” under Article 370. The Court decided to give the word “modification” the “widest possible amplitude” in the context of Article 370.

1968: Sampat Prakash v. State of Jammu & Kashmir

In 1968, the Supreme Court addressed the constitutionality of two Presidential Orders extending the applicability of Article 35(c) in Jammu & Kashmir in the case of Sampat Prakash v. State of Jammu & Kashmir. Article 35(c) was a specific clause that shielded preventive detention statutes against state claims based on basic rights.

The petitioners contended that the President was no longer able to issue instructions under Article 370(1) since Article 370 ceased to exist following the dissolution of the Constituent Assembly. As to the ruling of the Supreme Court, Article 370 shall endure even after the dissolution of the Assembly. This decision suggested that, even in the absence of the Constituent Assembly, Article 370 had become a permanent part of the Constitution.

1972: Maqbool Damnoo v. State of Jammu & Kashmir

In 1972, the President issued an order to amend Article 367, the Constitution’s interpretation provision, to reword “Sadar-i-Riyasat” to “Governor” in the case of Maqbool Damnoo v. State of Jammu & Kashmir. The petitioners contested this order, claiming that the Constituent Assembly, which had already disbanded, had not provided a “recommendation” for it. The Supreme Court affirmed the Presidential Orders’ legality. Since the office of the “Sadar-i-Riyasat” was no longer in existence, the Court saw the Amendment as just providing clarity. As to the ruling of the Court, the Governor inherited all the rights formerly held by the “Sadar-i-Riyasat” and was thus authorized to use them.

2016: SBI vs Santosh Gupta

Fast-forwarding to 2016, the Supreme Court heard a case challenging the Union government’s Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in State Bank of India v. Santosh Gupta. The petitioners argued that this Act conflicted with the Jammu and Kashmir Transfer of Property Act, of 1920, a piece of state-specific legislation.

The law of the Union was affirmed by the Supreme Court. The Supreme Court noted throughout the proceedings that there was no clear timetable for when Article 370 would go into effect. The aforementioned clause shall remain operative until the Constituent Assembly recommends otherwise. This ruling strengthened the argument that the approval or cooperation of the Jammu and Kashmir Constituent Assembly was essential to repeal Article 370.

2018: Governor’s Rule in J&K

Further in 2018, A political breakdown resulted in the installation of governor’s rule in Jammu and Kashmir when the Bharatiya Janata Party (BJP) withdrew its support from the People’s Democratic Party (PDP). Article 92 of the Jammu and Kashmir Constitution states that the Governor’s term is limited to six months. Consequently, on December 19, 2018, the Governor’s reign came to an end.

2018: President’s Rule in J&K

On December 19, 2018 itself, President Ram Nath Kovind issued a proclamation implementing President’s Rule in Jammu and Kashmir under Article 356 of the Indian Constitution. Following the implementation of the Governor’s Rule in June 2018, this occurred. In December 2018 and January 2019, the parliament’s two chambers adopted this proclamation. The Union Parliament and the President took the place of the Legislative Assembly and the Governor in the proclamation.

2019: President’s Rule extended

The anticipated expiration date of the President’s Rule in Jammu & Kashmir was July 2, 2019. Beginning on July 3, 2019, the Union Cabinet decided to prolong this by six months. The Governor of Jammu and Kashmir’s report, which claimed that the “prevailing situation in Jammu and Kashmir” necessitated extended extension of the rule, served as the basis for the decision to extend President’s Rule.

2019: Interpretation of ‘Constituent Assembly’

President Ramnath Kovind issued an Order (C.O. 272) that changed the understanding of “Constituent Assembly” under Article 370(3) to “Legislative Assembly” by changing Article 367, the interpretation clause. This action was akin to Maqbool Damnoo. This specifically meant that the “legislative assembly” would have to approve any presidential orders. Since the President’s Rule was in effect in Jammu and Kashmir, the Parliament satiated the requirement for the “legislative assembly’s” assent. Additionally, the Governor’s rule (June 2018) and the President’s rule (December 2019) had left no functional “legislative assembly” and the Constituent body disbanded after more than 60 years. In July 2019, one month following the President’s six-month extension of power came the Presidential decree.

In a statutory resolution, the Rajya Sabha suggested repealing both the Jammu and Kashmir Reorganisation Act of 2019 and Article 370.

 

5^th August 2019: Abrogation of Article 370

Following the Rajya Sabha’s approval of the Reorganisation Act the day before, the Lok Sabha passed the statutory resolution. Following this, President Ramnath Kovind signed an Order (C.O. 273) that nullified Article 370 and eliminated Jammu and Kashmir’s unique status. With the exception of clause 1, all provisions of Article 370 came to an end as a result of the Order. The Indian Constitution shall apply in the State of Jammu and Kashmir, according to Clause 1 of Article 370.

2019: Bifurcation of Union Territories

By passing the Jammu and Kashmir Reorganisation Act, 2019, the Union Parliament divided the state of Jammu and Kashmir into two Union territories: Ladakh and Jammu and Kashmir. Ladakh will not have a legislative assembly, although the Union Territory of Jammu and Kashmir will. According to Union Home Minister Amit Shah, the restructuring will strengthen the region’s economy, tourism, and growth.

2019: Constitutionality of Order

Arguing on the Order’s constitutionality, a three-judge bench comprising former Chief Justice Ranjan Gogoi, former Chief Justice S.A. Bobde, and Justice Abdul Nazeer began hearing arguments. After two days of deliberations, the Bench decided it was imperative to forward the case to a Constitution Bench for additional review.

2020: Not a larger bench

A five-judge panel, presided over by former Chief Justice N.V. Ramana and comprised of Justices S.K. Kaul, R. Subhash Reddy, B.R. Gavai, and Surya Kant, declined to forward Shah Faesal v. Union of India to a higher court. The petitioners claimed that the decisions made in Sampat Prakash, Maqbool Damnoo, and Prem Nath Kaul were at odds with one another. They maintained that Prem Nath Kaul instituted the need for the consent of the Constituent Assembly in order for the President to use his authority, and therefore the President’s authority ceased at the dissolution of the Constituent Assembly.

Subsequent rulings in Sampat Prakash and Maqbool Damnoo, which maintained the legality of Presidential directives even after the Constituent Assembly had dissolved, clearly contradicted the Prem Nath ruling. The petitioners contended that a referral to a more expansive Constitution bench was necessary due to the clear discrepancy between the judgements. The Bench dismissed these arguments, stating that Prem Nath and Sampat Prakash’s circumstances were fundamentally different from one another. The Supreme Court noted that Prem Nath Kaul differs from the succeeding instances in that it did not address the matter of Article 370’s ongoing relevance following the Constituent Assembly’s dissolution.

2023: Article 370 is listed before a new 5-judge bench

The Supreme Court, presided over by Chief Justice D.Y. Chandrachud and composed of Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, assigned the Challenge to the Abrogation of Article 370 to a new Constitution Bench on July 3rd, 2023. They are also the Supreme Court’s five most senior judges. The one-page notice stated that on July 11, 2023, the newly formed Constitution Bench will consider the case and issue additional directives. Chief Justice Chandrachud and Justice Sanjiv Khanna took the seats of previous Chief Justice N.V. Ramana and Justice Subhas Reddy on the new Bench.

2023: Hearings commence

At 10:30 AM, attorneys for the petitioners and the Union government convened in Courtroom 1 of the CJI’s Court to deliberate on the proposed course of action for the challenge. The CJI-led bench announced that the hearings will start on August 2, 2023, which is nearly four years after the Presidential Order that deprived Jammu and Kashmir of its special status. When the primary petitioner withdrew, the case was retitled “In re: Article 370 of the Constitution.” In 22 petitions contesting the repeal of Article 370, the Supreme Court will hear arguments.

September 2023: Judgement is reserved

Following a total of 16 days and more than 60 hours of proceedings, the Constitution Bench reserved its decision on September 5, 2023. Solicitor General Tushar Mehta argued for 11 hours, while Senior Advocate Kapil Sibal argued for the longest, 14 hours. There were just three Kashmiri advocates on either side. The validity of the Jammu and Kashmir Constituent Assembly, the extent of the President’s powers during the President’s Rule, and the internal sovereignty of Kashmir were among the main topics of discussion.

11^th December 2023: Abrogation is upheld

The Bench determined, in unanimity, that Article 370 was a provisional measure intended to facilitate Jammu and Kashmir’s unification with the Indian mainland. CJI Chandrachud prepared the majority judgment in the 476-page ruling on behalf of Justices Gavai and Kant as well as himself. A second concurring opinion was written by Justices Kaul and Khanna.

The Bench held that Jammu and Kashmir had no internal sovereignty but was a feature of asymmetric federalism. In a small win for the petitioners, they declared that para two of CO 272 was unconstitutional because it used the interpretation clause under Article 367 to amend Article 370.

However, the Bench pointed out that the President of India had applied all provisions of the Constitution to Jammu and Kashmir under Article 370(1)(d) which had the “same effect” as declaring that Article 370 ceases to exist. C.O. 272 as a whole was upheld. Subsequently, they held that the President also had the power to abrogate Article 370 without the recommendation of the Constituent Assembly of Jammu and Kashmir. Through this, the Bench upheld CO 273.

Given that Solicitor General Tushar Mehta had promised that J&K will regain its statehood shortly, the Bench decided not to rule on the legitimacy of the reorganisation of the state into the Union Territories of Jammu and Kashmir and Ladakh. They maintained the decision to divide the Ladakh Union Territory. Furthermore, the ruling concluded that the revocation of Article 370 rendered the Jammu and Kashmir Constitution ineffective.

Conclusion:

Article 370 was a unique provision in the Indian Constitution that accorded a special status to Jammu and Kashmir. It was part of Part XXI of the Constitution, which deals with Temporary, Transitional, and Special Provisions. One of the distinguishing features of Article 370 was its provision that allowed the laws passed by the Indian Parliament to not be automatically applicable to Jammu and Kashmir.

Instead, the State Legislature had the authority to approve these laws by enacting a corresponding act. This gave Jammu and Kashmir a degree of autonomy and distinguished it from other states. Although Article 370 was initially intended to be a temporary measure, it became a permanent feature of the Indian Constitution when the state constituent assembly dissolved without recommending its abrogation.

On August 5, 2019, a historic development unfolded as the Indian government, under Presidential Order C.O. 273, nullified Article 370, thereby eliminating the special status of Jammu and Kashmir. The subsequent passage of the Jammu and Kashmir Reorganisation Act, 2019, led to the division of the state into two Union Territories: Ladakh and Jammu and Kashmir. This significant move was followed by constitutional challenges and legal proceedings, culminating in the Supreme Court’s unanimous decision on December 11, 2023, upholding the abrogation of Article 370. The ruling emphasized the provisional nature of Article 370 and validated the President’s authority in this transformative constitutional reorganization.

WRITTEN BY: AKSHAYA ZAVAR

Article 370 – 2023 Judgement

 

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