Article 370, a curtain-raiser: Factum valet or redemption of federalism? Supreme Court to decide

Article 370, under which Jammu and Kashmir (J&K) was guaranteed a special status of substantial autonomy within the Union of India, was nullified on August 5, 2019 through a Presidential Order while J&K was under a military siege and all its leadership across the political spectrum behind bars. Three years down the line, when the 'facts on the ground' have been changed substantially, at least in legal terms, and most of the local leadership remains incarcerated, the Supreme Court of India is finally set to hear a batch of petitions challenging various aspects of the decisions taken on and around that fateful day.

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"Kashmir should decide the question of accession by plebiscite or referendum under international auspices such as those of the United Nations… We have not opposed at any time an over-all plebiscite for the State as a whole… The most feasible method of ascertaining the wishes of the people was by fair and impartial plebiscite— Jawaharlal Nehru.

The Kashmir issue is a political problem which will eventually find a political solution. 

The autonomy guaranteed to the erstwhile State of Jammu and Kashmir under Article 370 of the Indian Constitution, which was abrogated in one fell swoop on August 5, 2019, is, on the other hand, a legal and constitutional issue first and foremost.

In a way, the abrupt dissolution of the special status was not the rude shock it is made out to be. Successive Indian governments have nibbled away at the Article ever since it was first introduced into India's constitutional schema to integrate the unique Instrument of Accession signed by the last Dogra Maharaja of J&K, Maharaja Hari Singh.

So much so that by December 4, 1964, the then home minister of India Gulzari Lal Nanda could confidently describe Article 370 as a tunnel through which a good deal of traffic had already passed and more would.

"What happens is that only the shell is there. Article 370, whether you keep it or not, has been completely emptied of its contents. Nothing has been left in it," Nanda had quipped.

But this piecemeal approach was not enough for the Hindutva politics of India. The complete abrogation of the Article has been one of its fundamental planks ever since the 1950s.

"Ek desh main do vidhan, do pradhan, do nishan, nahi chalenge [There cannot be two constitutions, two prime ministers and two flags in one country]," Dr Syama Prasad Mookerjee of the Bharatiya Jan Sangh had thundered in the 1950s.

Armed with a substantial majority in the Indian Parliament, they finally managed to fulfil their dream in 2019. The Constitution (Application to Jammu and Kashmir), Order, 2019 (Presidential Order C.O. 272) issued by the President of India Ram Nath Kovind ended the limited autonomy of J&K.

When this change was brought about, Kashmir had been put under a military lockdown and political leadership across the spectrum was under arrest. A telecommunications blackout was enforced, which ultimately became the longest internet shutdown ever imposed anywhere in the world. There were no consultations and no sharing of information with the people who were going to be affected by the change.

Now the dream has reached the Supreme Court in search of a cloak of constitutional ratification.

Background

Article 370 (Article 306A of the Draft Constitution) of the Constitution was a temporary provision added to the Indian Constitution as a result of the Instrument of Accession signed on October 27, 1947. It provided for a special constitutional status to Jammu and Kashmir.

On July 18, 1947, the British Parliament passed the Indian Independence Act. Under Section 1(1) of the Act, two independent sovereign countries, namely India and Pakistan, were to come into existence.

The 584 'princely states' under British suzerainty in the Indian subcontinent were given an opportunity to accede to either dominion.

The Act provided that a state shall be deemed to have acceded to a dominion if the Governor General of that dominion had signified his acceptance of an Instrument of Accession executed by the ruler of the state.

However, Jammu and Kashmir did not immediately accede to either of the dominions. He signed a standstill agreement with Pakistan, but India refused to sign a similar agreement.

It was a peculiar state, where a Hindu maharaja ruled over an overwhelmingly Muslim praja, an inversion of the situation in Hyderabad and Junagadh.

The maharaja of J&K had been facing a popular challenge for more than two decades, with people calling for an end to the monarchy and establishment of democracy in J&K.

A Quit Kashmir movement was started against the maharaja in 1946, mirroring the Quit India movement against British rule in India.

After the British rule in the subcontinent ended in 1947, the maharaja knew that his days as ruler were numbered unless he was able to suppress the popular movement against him.

As scholarship has established, partisans of the maharaja engaged in systematic massacres of Muslims in Jammu city, the seat of Dogra rule, and the surrounding areas.

Muslims in the Poonch belt and across the border in what had become West Punjab and the Northwestern Frontier Province, who had affinity of kinship and religion with the Jammu Muslims, poured across the porous border to help their brethren against the maharaja and to put an end to the Dogra rule in J&K.

As a last ditch effort, the maharaja signed an instrument of accession with India and Indian armed forces pushed the tribesmen and Pakistani army back, establishing what eventually came to be known as the 'Line of Control' and creating the first partition of the State of J&K.

The Instrument of Accession was a declaration made by the erstwhile ruler of the then-independent princely state of Jammu & Kashmir and the then Governor General of India, Lord Louis Mountbatten, to conditionally accede to the dominion of India.

However, the document added that the accession shall not be deemed to be a commitment in any way to "acceptance of any future Constitution of India".

The Instrument of Accession limited the power of the dominion legislature (later exercised by the Parliament of India after the Constitution was adopted) to "defence, external affairs, and communications". 

That is, as per Article 370(1)(d), except for the aforementioned subjects, the Parliament of India was given the power to make laws.

According to the Instrument of Accession, its terms shall not be varied "by any amendment of the Act or of the Indian Independence Act, 1974" unless such amendment is accepted by the ruler by an instrument supplementary to that instrument.

The Instrument of Accession explicitly prohibited the dominion legislature from making any laws compulsorily authorising the acquisition of land for any purpose.

How was Article 370 abrogated?

The President Order C.O. 272 supersedes Constitution (Application to Jammu and Kashmir) Order, 1954 (Presidential Order C.O. 48) which was issued by the then President of India Rajendra Prasad in 'concurrence' with the government of J&K.

The 1954 Order was pursuant to the 1952 Delhi Agreement, signed between the government of India and the government of J&K to reaffirm that the State would continue to exercise power in all sovereign matters other than those specified in the Instrument of Accession and the residuary constitutional powers shall reside with the State.

The Delhi Agreement is an arrangement between former Prime Minister of Jammu & Kashmir Sheikh Mohammad Abdullah and Nehru, extending a special constitutional framework to J&K.

The comprehensive agreement also stated that considering the "peculiar position" of J&K, the whole chapter on fundamental rights (Part III of the Indian Constitution) could not be made applicable to the State.

It was also agreed by the Union government that the State will continue to have a separate flag  and an elected Sadar-i-Riyasat (President of the State) who could be elected by the State legislature but must be recognised by the President of India, before he assumes the official position.

The Presidential Order C.O. 48 extended certain provisions of the Constitution of India to J&K and added certain amendments to and exceptions to the Constitution of India in the context of the special status of the State.

For instance, it added that the Sadar-i-Riyasat of J&K should be read as 'governor' under the Indian Constitution for a harmonious reading.

Part III of the Constitution of India conferring fundamental rights was also extended to J&K to a limited extent.

The Presidential Order C.O. 48 inserted Article 35A which acknowledged the notion of 'hereditary state subjects' of J&K as defined under the Notification 1-L/84 of April 20, 1927, and recognised the rights conferred to them under the law, including having exclusive rights to own and acquire immovable property in the State and be eligible for jobs in the State government.

The Presidential Order C.O. 48 also stated that no such laws operational in J&K shall be declared void for being violative of the fundamental rights under Part III of the Constitution of India.

Another amendment inserted a proviso in Article 3 (formation of new states and alteration of areas, boundaries or names of existing states) of the Indian Constitution, which stated that no Bill altering the name or boundary of the State of J&K shall be introduced in the Parliament without the consent of State legislature.

Most importantly, the Presidential Order C.O. 48 also inserted clause (4) in Article 367 (interpretation) of the Constitution.

On January 26, 1957, the Constituent Assembly of J&K adopted the Constitution of Jammu and Kashmir, which defined, among other things, the position of Sadar-i-Riyasat, state legislature and the council of ministers headed by the Prime Minister.

On the same day, the Constituent Assembly of J&K stood dissolved based on a resolution passed on November 17, 1956.

The Constitution of J&K, under Articles 3 (relationship of the State with the Union of India) and 5 (extent of executive and legislative powers of the state) respectively, stated that "J&K is and shall be an integral part of India and that the executive and legislative power of the State extends to all matters except for matters in which the Parliament is empowered to make laws under the Constitution".

A proviso to Article 147 (amendment to the Constitution) of the State Constitution provided that no legislative assembly can alter Articles 3 and 5 of the Constitution. It also stated that there can be no amendment to the provisions of the Constitution of India applicable to the State.

As per the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, the expressions "Sadar-i-Riyasat" and "Prime Minister" in the Constitution of J&K were changed to "governor" and "chief minister" respectively.

Finally, the Kashmir Accord of 1975 again reiterated that the residuary powers of legislative matters be retained by the legislature of J&K.

The Presidential Order C.O. 272 added Article 367(4)(d), which makes the Constitution of India applicable to J&K without any exceptions and modifications.

Clause (d) of Article 367(4) says that the reference to "Constituent Assembly of the State" in Article 370(2) of the Constitution would be read as "Legislative assembly of the State" for the purpose of Article 370(3).

Article 370(3) allows the Parliament of India to declare that Article 370 would cease to exist or shall be operative only with such exception or modifications, provided that the recommendation of the Constituent Assembly prior to the issuing of public notice by the President of India has been necessarily taken.

This could be exercised through Article 370(1) which allows the Parliament of India to make laws for the State.

Subsequently, On August 5, 2019, the Indian Union Minister of Home Affairs, Amit Shah, moved a Statutory Resolution that the President "on the recommendation of the Parliament" will issue a public notification through Article 370(1) read with (3) in Rajya Sabha to recommend that from that day, all clauses of Article 370 shall cease to be operative except clause (1), which allowed all amendments to apply to Jammu & Kashmir.

Clause (1) reads as: "All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in Article 152 (definition) or Article 308 (interpretation) or any other Article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, Ordinance, Order, byelaw, Rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under Article 363 (bar to interfere by courts in disputes arising out of a certain treaties, agreement etc) or otherwise."

This amendment was allowed in the Parliament because the State was under Presidential rule and the legislative powers were deemed to be vested with the Indian Parliament.

The Presidential rule was only revoked post-abrogation.

Shah also introduced The Jammu and Kashmir Reorganisation Bill, 2019. The Bill intended to bifurcate the State of Jammu & Kashmir into two new Union territories namely J&K and Ladakh, where the former retains a legislative assembly. 

Both recommendations were accepted by Rajya Sabha. The Jammu and Kashmir Reorganisation Act, 2019 came into force on November 31, 2019.

Subsequently, on August 6, 2019, the President issued another Presidential Order (C.O. 273) declaration (C.O. 273), wherein as and from August 6, 2019, all clauses of Article 370 shall cease to be operative.

So, the Presidential Order C.O. 272, statutory resolution along with Presidential Order C.O. 273, amended Article 367 (interpretation) through Article 370(1)(d) to ultimately dilute the special status of J&K through Article 370(3).

On August 9, 2019, the Parliament passed the Jammu & Kashmir Reorganisation Bill.

What are the petitions challenging the abrogation of Article 370?

A batch of petitions has been filed before the Supreme Court challenging the constitutionality of the abrogation of Article 370.

Constitutional challenge to the Presidential Orders C.O. 272 and C.O. 273, and Jammu and Kashmir Reorganisation Act

Some of the early petitions were by advocates Manohar Lal Sharma, Shakir Shabir and Soyaib Qureshi.

Sharma's petition challenges the constitutionality of Presidential Order C.O. 272.

Another joint petition filed by former speaker of J&K legislative assembly, Mohd. Akbar Lone, and former J&K High Court judge and member of Parliament from the Anantnag constituency, Hasnain Masoodi, both belonging to Jammu and Kashmir National Conference leader, also challenges the same along with the Jammu and Kashmir Reorganisation Act. 

According to their petition, the Presidential Order C.O. 272 is constitutionally invalid. It is because, firstly, the Order passed under Article 370(1)(d) is ultra vires the authority conferred by that Article. Article 370(1)(d), which was meant to apply "other provisions of the Constitution" to the State of J&K— is used to alter Article 370 itself.

Another challenge in the petition by Lone and others is to the Presidential Order C.O. 272, to the effect that by replacing the reference to "Constituent Assembly" of J&K with one to the "legislative assembly", it seeks to do what the State Constitution prohibits under its Article 147.

As per the petitioners, Article 147 expressly bars the legislative assembly of J&K from "seeking to make any change in the provisions of the Constitution of India as applicable in relation to the State".

Moreover, the legislative assembly of the State of J&K has no power under the Constitution of J&K to bring an amendment to any provision under the Indian Constitution.

The amendment to Article 367 of the Indian Constitution, which in effect amends Article 370 of the Indian Constitution, comes as a violation of a well-established principle of colourability. According to the principle, "what cannot be done directly cannot also be done indirectly".

A joint petition filed by former member of the 2010 Home Ministry's Group of Interlocutors for Jammu and Kashmir, Radha Kumar; officer of the Indian Administrative Service (IAS) of the J&K cadre, Hindal Haidar Tyabji; air vice marshal (Retd.), Kapil Kak; major general (Retd.), Ashok Kumar Mehta; former member of the Punjab cadre of the IAS, Amitabha Pande; and former IAS Kerala cadre, Gopal Krishna Pillai also argue that this amendment is a colourable exercise of power.

This joint petition contends that the Presidential Orders C.O. 272 and C.O. 273 and the Jammu and Kashmir (Reorganisation') Act, 2019 should be quashed.

Another joint petition by IAS officer from J&K, Shah Faesal, who had left the IAD briefly to form a political party, with activist Shehla Rashid, also challenges this aspect. It should, however, be noted that this petition stands withdrawn.

Another issue raised in a joint petition by Lone and others is that all provisions of the Constitution of India have been made applicable to J&K, thereby undermining one of the basic purposes of Article 370. 

According to the petition by Lone and others, Article 370 was meant to facilitate the extension of constitutional provisions to the State in an "incremental and orderly manner" without dismantling the State Constitution.

Article 370(1)(d) allows the President to apply "such of the other provisions of this Constitution" to the State. This includes the power to amend or modify the application of the provisions to the State. 

The petitioners contend that Article 370(1)(d) does not empower the Indian Parliament to create "fresh constitutional provisions" in relation to the State of J&K— in this case Article 367(4). 

The petitioner also contends that the powers granted under Article 370(1)(d) do not extend to a wholesale replacement of the Constitution of the State.

Lastly, by bifurcating the State's territory into Union territories, the statehood has been downgraded retrospectively. This violates the federal scheme under Articles 1 and 3 of the Constitution. This comes in violation of the principle of non-retrogression set out by the Supreme Court in Navtej Singh Johar versus Union of India (2018).

Kashmiri performance artist Inderjit Tickoo alias Inder Salim and former BBC journalist Satish Jacob have challenged the bifurcation of J&K into two Union territories.

Challenge to the unconstitutional manner in which concurrence was obtained

The joint petition of Lone and others also challenges the manner in which the phrase "concurrence of the legislative assembly" was substituted by "concurrence of the Union parliament" by extending the period of Presidential rule, which in itself is temporary.

According to the petition, the government of India obtained its own consent to accomplish a "fundamentally, permanently, and irreversibly alteration of the status" of J&K "without the concurrence" of State.

The petition says that the Presidential Order C.O. 272 mentions the "concurrence of the government of the State of J&K" which in reality is the Indian Parliament allowing itself to make such a fundamental federal change.

Lone's petition refers to the Supreme Court's judgment in S.R. Bommai versus Union of India (1994) to argue that in any event "government" cannot be equated with "governor" in matters involving fundamental and permanent restructuring of the State.

The petition by Radha Kumar and others also raises the issue that no recommendation by the "Constituent Assembly of J&K was made before the Presidential Order C.O. 272 was notified".

Challenge to the Presidential rule which was extended by the Union cabinet

In a petition filed by J&K People's Conference through its spokesperson Adnan Ashraf, it has been contended that the Constitution of India does not contemplate the transfer of constituent power during Presidential rule.

This assumes significance in light of the State being put under Presidential rule on December 19, 2018, which was further extended for six months with effect from July 3, 2019.

Constitutional challenge to media restrictions, internet suspension and regressive curfew measures 

One of the questions that is likely to come up during the hearings is whether such sweeping changes in the constitutional status of the citizens of J&K could be made without their consent and without allowing them to express their opinion on it.

In this context, Qureshi's petition challenges the illegal manner in which internet speed had been restricted to second generation (2G) in the State without any cogent reasons.

The petitioner claims that the internet "speed restriction orders" hampered all aspects of daily life in J&K. 

It should be noted that executive editor of Kashmir Times, Anuradha Bhasin and former chief minister of J&K Ghulam Nabi Azad had approached the Supreme Court challenging the blanket suspension of telecom services. Qureshi was an intervenor in this petition.

In 2020, the Supreme Court, in a landmark judgment of Anuradha Bhasin versus Union of India, observed that a blanket ban of telecom services is unconstitutional.

Qureshi's petition was filed after the judgment as it relies on Anuradha Bhasin's judgment.

Another petition filed by Bhasin challenges the prolonged media restriction in the State after the abrogation of the special status.

Similarly, political analyst Tehseen Poonawalla's petition challenges the "regressive measures" taken by the Union government on halting telecom services, imposing "emergency-like restrictions" under Section 144 of the Code of Criminal Procedure and suspending all forms of communication in the State before the abrogation.

Petition challenging unlawful detention and house arrest of politicians 

Related to the question of the decision to change the constitutional status of the citizens of J&K without their consent is the question of their leadership, both popular and elected, being detained before the decision was made public.

It is in this light that the petition of habeas corpus filed by Communist Party of India (Marxist) [(CPI) (M)] general secretary Sitaram Yechury, challenging the detention of CPI (M) leader and former member of the J&K legislative assembly Mohammed Yousuf Tarigami, gains importance.

During the imposition of the curfew, many political leaders of J&K were put under house arrest, including Tarigami.

On August 28, 2019, the Supreme Court permitted Yechury to travel to the State and ascertain the whereabouts of Tarigami.

Subsequently, Orders were also passed by the Supreme Court directing Tarigami's transfer to the All India Institute of Medical Science, New Delhi.

The petition was finally disposed of in May, 2023. The court granted liberty to Tarigami to adopt appropriate remedies in accordance with the law to seek compensation and other relief. 

Petition challenging non-participatory developmentalism 

In her petition, Kashmiri advocate Rifat Ara Butt raises the issues of non-participation of the people of J&K in the decision to abrogate Article 370.

Further, Butt has challenged the Presidential Order C.O. 272 on the grounds that such substantive constitutional amendment requires amending the Constitution through a procedure prescribed under Article 368.

As per the petitioner, such an amendment requires a two-third majority in the Parliament to be present and voting.

Another issue raised by the petitioner is that the Parliament cannot bifurcate J&K into two Union territories without referring the same to the State legislature for their views pursuant to Article 3 of the Indian Constitution.

In all, Butt's petition terms the "non-participatory developmentalism" as Article 370 mandated the concurrence of a democratically elected State government.

She has prayed for the court to declare that the Presidential Order C.O. 278, Jammu & Kashmir Reorganisation Act, 2019 and the declaration of the President making Article 370 inoperative unconstitutional for being violative of Articles 14 (equality before law), 19 (protection of certain rights regarding freedom of speech etc), and 21 (protection of life and personal liberty) of the Indian Constitution. 

The combination of these arguments has also been raised in a petition filed by the civil rights organisation People's Union for Civil Liberties.

What are the constitutional issues raised in the petitions?

• That the method of abrogation of the special status is manifestly arbitrary, contrary to the principles of the constitutional scheme of India and J&K, and violative of the principle of rule of law which is a part of the basic structure of the Constitution.
• That the Presidential Order C.O. 272 incorrectly invokes Article 370(1)(d) to amend the proviso to Article 370(3).
• That Article 370(1) only allows certain provisions of the Indian Constitution to be applicable to the State of J&K. It neither allows the creation of a fresh constitutional provision, which is the addition of clause (4) to Article 367, nor the application of "all provisions of the Indian Constitution" to the State to an extent which results in a wholesale replacement of the Constitution of J&K.
• That the amendment to Article 367 by adding clause (4) by replacing "Constituent Assembly of the State" to read "legislative assembly of the State" and thereby nullifying the effect of Article 370 is a colourable exercise of power.
• That the "concurrence" mentioned in the Presidential Order C.O. 272 has to be the recommendation of the Constituent Assembly as per Article 370(3). The concurrence on which the Presidential Order C.O. 272 is based does not have sufficient constitutional foundation.
• That the "consent" to the Presidential Order C.O. 272 was invalidly given, as powers under the President's rule are "coterminous" with that of the legislative assembly of the State. However, Article 147 of the Constitution of the State bars the Legislative Assembly from "seeking to make any change in the provisions of the Constitution of India in relation to the State". So, since the legislative assembly could not have given its consent to the Presidential Order C.O. 272, nor could the governor.
• Alternatively, that the legislative assembly of J&K does not possess the constituent powers to recommend a modification to Article 370. Moreover, once the Constituent Assembly ceased to exist, Article 370 was "frozen in time".
• That the transfer of power under the President's rule is purely temporary in nature. During such proclamation, making fundamental federal change is unconstitutional.
• That bifurcating the State of J&K into two Union territories is a violation of Articles 1 and 3 of the Indian Constitution which does not allow retrogression of statehood. 
•  Lastly, that the decision to abrogate Article 370 was taken without ascertaining the will of the people of J&K.

What has happened so far to these petitions?

Taking note of M.L. Sharma's petition, a three-judge Bench of the Supreme Court consisting of the then Chief Justice of India (CJI) Ranjan Gogoi and comprising the then Justices S.A. Bobde and S. Abdul Nazeer referred the matter to the five-judge Constitution Bench on August 28, 2019. 

A five-judge Bench comprising Justices N.V. Ramana, Sanjay Kishen Kaul, R. Subhash Reddy, B.R. Gavai and Surya Kant was formed. The Bench began hearing the matter from October 1, 2019, and the hearings went on for seven days.

During the hearing, the Bench found that its two judgments, namely Prem Nath Kaul versus The State of Jammu & Kashmir (1959) and Sampat Prakash versus State of Jammu & Kashmir (1968) were in conflict with each other.

While the former judgment termed Article 370 temporary and declared that the authority to give final approval with respect to making changes in Article 370 rests with the Constituent Assembly of J&K, the latter judgment observed that the power of the President to make amendments and modifications in applying certain provisions of the Constitution of India to J&K under Article 370(1)(d) is to be interpreted in a widest possible manner.

Reliance was also put by both sides on the Mohd. Maqbool Damnoo versus State of Jammu and Kashmir (1972).

The defendants pointed out that the 1965 amendment through Article 370 of the Indian Constitution, by which the expressions "Sadar-i-Riyasat" and "Prime Minister" in the Constitution of J&K were changed to "governor" and "chief minister" respectively, were upheld by the Supreme Court.

They argued that the same principle should apply to the 2019 Presidential Orders. 

The other side defended that such changes did not dilute or nullify Article 370.

A request for a reference to a seven-judge Bench was made.

On March 2, 2020, the five-judge Bench refused to refer the petitions to a larger Bench, stating that there is no conflict in two judgments.

Finally, the matter has come up again before a five-judge Bench of CJI Dr D.Y. Chandrachud and comprising S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant after a period of nearly three years. 

The court is expected to hear the matter from today.