In Re Article 370 judgment: The challenge and what is at stake

On the eve of the judgment In Re Article 370, an in-depth look into the legal history of the issue, the hearings and the major questions of law on which the Constitution Bench is expected to pronounce a judgment tomorrow.

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MORE than four years have passed since the special autonomy guaranteed to the Himalayan region of Jammu and Kashmir (J&K) under Article 370 of the Indian Constitution was ended in one fell swoop by the Bharatiya Janata Party (BJP)-led Union government.

While the entire J&K was put under a military lockdown and in a communication blackout, it was also bifurcated into Union territories of J&K and Ladakh through the Constitution (Application to Jammu and Kashmir), Order 2019 (Presidential Order C.O. 272).

The BJP thus brought to fruition a dream its progenitors had held on to since the 1950s when Syama Prasad Mookerjee of the Bharatiya Jan Sangh had given the war cry, "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]."

Now, after hearing a challenge to this decision over 16 days, a five-judge Bench of the Supreme Court headed by Chief Justice of India Dr D.Y. Chandrachud and also comprising Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant is set to pronounce its judgment tomorrow.

A brief history of Article 370

Article 370 (Article 306A of the Draft Constitution) falls under Part XXI of the Indian Constitution and is termed as 'temporary provisions with respect to the State of Jammu and Kashmir'.

This provision was added as a consequence of signing the Instrument of Accession by the last Dogra Maharaja of J&K, Maharaja Hari Singh. J&K was one of the 584 Princely States under British dominion.

When the British Parliament passed the Indian Independence Act, 1947 on July 18, 1947, two sovereign nations, India and Pakistan, were born.

The Princely States were given an opportunity to accede to either. As per the Indian Independence Act, a Princely State wanting to accede to either had to sign an instrument of accession.

J&K did not immediately accede to either nation. Instead, Hari Singh offered a standstill agreement to both countries. While Pakistan signed it, India refused.

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 the 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 an 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 gave unconditional powers to the Indian legislature on three subjects: defence, external affairs and communications. However, it limited the dominion's power on other issues.

The Instrument of Accession made it clear that the accession shall not be deemed as the intention of J&K to "acceptance of any future Constitution of India".

The conditions laid down in the Instrument of Accession were inculcated in the Indian constitutional scheme through Article 370.

Article 370(1)(b)(i) provided that the Indian Parliament shall have the power to make laws on subjects corresponding to the ones provided for in the Instrument of Accession in "consultation" with the "Government of the State".

Article 370(1)(b)(i) provided that the Indian Parliament shall have the power to make laws on other subjects in "concurrence" with the "Government of the State".

The "Government of the State" was defined as one recognised by the President of India as the "Sadar-i-Riyasat [changed to Governor later] of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office".

Article 370(2) mentions the "Constituent Assembly" for the purpose of drafting a Constitution for J&K, underlining the unique arrangement between India and J&K where each would have its own Constitution.

This Constitution was finally drafted and came into operation on November 17, 1956.

Article 370(3) provided for making Article 370 inoperative by the President of India but only on a "recommendation" of the "Constituent Assembly of the State".

How was Article 370 used before it was made inoperative?

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 Instrument of Accession.

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.

The Presidential Order of 1950, officially The Constitution (Application to Jammu and Kashmir) Order, 1950, came into force together with the Constitution of India on January 26, 1950.

While it specified the subjects and Articles of the Indian Constitution that corresponded to the Instrument of Accession as required by Article 370(b)(i), 235 Articles of the Constitution of India remained completely inapplicable to J&K.

In 1952, the Delhi Agreement was signed between the government of India and the legislature of J&K.

The agreement was significant because while it reiterated that the Indian Parliament would exercise unconditional powers to legislate over the three subjects provided for in the Instrument of Accession, it vested residuary powers with the J&K legislature.

The agreement was a unique constitutional arrangement between the then Prime Minister of J&K Sheikh Mohammad Abdullah and his Indian counterpart Jawaharlal Nehru.

It provided that although the domiciled people of J&K will be recognised as citizens of India under Article 5, the J&K legislature will have the power to confer special rights and privileges considering the concept of hereditary state subjects under the 1927 notification.

Importantly, the agreement recognised the position of Sadar-i-Riyasat as the head of the State to be elected by the J&K legislature.

In other states placed in similar positions, the Sadar-i-Riyasat was to be a nominee of the Union government and the President of India.

The agreement clarified that Part III of the Indian Constitution on fundamental rights could not be made wholly applicable to J&K considering its "peculiar position". It was left to the J&K Constitution Assembly to decide whether fundamental rights should form a part of the State Constitution or the Indian Constitution as applicable to J&K.

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

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

Among other things, it stated that Sadar-i-riyasat shall be recognised as "Governor" of J&K under the Indian Constitution through the insertion of Article 367(4) (interpretation).

Further, Presidential Order C.O. 48 stated that no laws in operation in J&K shall be declared void for being violative of Part III of the Indian Constitution.

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

The Presidential Order C.O. 48 inserted Article 35A in the Indian Constitution which gave exclusive rights to the 'hereditary State subjects' of J&K to own and acquire immovable property in the State and to have government jobs.

All of these were ratified by the Constituent Assembly of J&K through the 1957 Constitution of Jammu and Kashmir, including the rights of 'hereditary State subjects' of the State under Article 6.

Part II of the J&K Constitution categorically retained the internal sovereignty along with the residuary legislative powers of the State.

Through the Constitution of Jammu and Kashmir (Six Amendment Act), 1965, Sadar-i-riyasat was changed to "Governor" in the Constitution of J&K.

In 1975, the Kashmir Accord signed by Kashmiri leader Sheikh Abdullah and the then Prime Minister of India Indira Gandhi reiterated that residuary legislative powers would remain with the J&K legislature.

How did the abrogation take place?

On June 20, 2018, 'Governor's rule' was imposed in J&K after the BJP had pulled out of its alliance with the People's Democratic Party. The alliance, which Prime Minister Narendra Modi would later describe as a "mahamilawat" had endured since March 1, 2015.

J&K's Constitution had a provision for Governor's rule under its Article 92 similar to the President's rule under Article 356 of the Indian Constitution.

Subsequently, the J&K assembly was dissolved on November 22 of that year following rival claims to form the government. The first came from PDP chief Mehbooba Mufti, who claimed the support of rival Omar Abdullah's National Conference and the Congress. The second claim was that of People's Conference chief Sajad Lone, who was backed by the BJP.

On December 20, 2018, the state was put under President's rule as per Article 92 of the J&K Constitution. The Presidential rule was extended for another six months later.

On August 5, 2019, Presidential Order C.O. 48 was superseded by Presidential Order C.O. 272.

The Presidential Order C.O. 272 stated that all provisions of the Indian Constitution, as amended from time to time, and with exceptions and modifications shall apply to J&K.

The Presidential Order C.O. 272 was introduced using Article 370(1)(d) by the President of India in concurrence with the J&K government.

Since J&K was under President's rule, the legislative powers were deemed to be vested with the Indian Parliament.

Thereafter, an amendment was introduced to Article 367(4) by which Clause (d) provided that a reference to "Constituent Assembly of the State" in Article 370(2) of the Indian Constitution would be read as "legislative assembly of the State".

By bringing a change to Article 367, Article 370 was essentially amended.

Another statutory resolution was moved in the Indian Parliament under Article 370(1) read with clause (3) which provided that all clauses of Article 370 shall cease to be operative.

Once the exercise of abrogation was fulfilled, President's rule was revoked.

The Jammu and Kashmir Reorganisation Bill, 2019 was also introduced in the same passage of Lok Sabha proceedings.

The Bill bifurcated J&K into two new Union territories namely J&K and Ladakh, where the former retained a legislative assembly. The Bill was subsequently passed on August 9, 2019.

On August 6, 2019, the Indian President issued a Presidential Order (C.O. 273), wherein as and from August 6, 2019, all clauses of Article 370 ceased to be operative.

What issues did the Supreme Court hear?

The main issues argued by the petitioners and respondents are:

How much sovereignty did J&K retain after the Instrument of Accession had been signed and Article 370 drafted?

Senior advocate Kapil Sibal, representing former speaker of the J&K legislative assembly Mohd. Akbar Lone, made passing references to shared sovereignty or partial sovereignty in the first three days of the petitioners' submissions.

However, the matter came out in the open on Days 4 and 5, when advocate Zafar Shah, for the Jammu & Kashmir (J&K) Bar Council, asserted that since there is no merger agreement, which would have signified a full-fledged integration of J&K with India, J&K maintained its "constitutional autonomy" through Article 370.

The Bench, picking up on the trace of the sovereignty argument in his assertion, expressed its reservation and responded by calling the "merger" of J&K with India "completely certain". There was "no conditional surrender of sovereignty" in terms of Article 1 of the Indian Constitution, the Bench asserted.

On Day 6, Rajeev Dhavan, for the J&K People's Conference, continued Shah's argument on sovereignty. He argued that the Instrument of Accession only signified that external sovereignty was lost. Internal sovereignty was not lost.

Senior advocate Dinesh Dwivedi, for advocate Manohar Lal Sharma and journalist Prem Shanker Jha, argued that internal sovereignty rested with the ruler of J&K and, later, with the Constituent Assembly of J&K.

Senior advocate Sanjay Parekh, representing the People's Union for Civil Liberties, reiterated the submissions of Dhavan and Dwivedi that internal sovereignty rested with the people of J&K.

Nitya Ramakrishnan approached the issue of autonomy differently. She argued that there was "shared sovereignty". Political sovereignty rested with the people of J&K and after the accession, the people of J&K "became sharers in India's political sovereignty", she argued.

She submitted: "In my view, Article 370 reflects and incorporates the entrustment of popular sovereignty to a divisible and shared legal sovereignty between the Union and J&K."

For the respondents, Attorney General of India R. Venkataramani, for the Union of India, submitted that there is no "factual or legal foundation" for any argument that a part or whole of the sovereignty of Jammu and Kashmir (J&K) survived post-accession.

Solicitor General of India Tushar Mehta, for the Union of India, stated that the body (Constituent Assembly of J&K) was merely named as the Constituent Assembly of J&K to draft the Constitution of J&K. However, it cannot be 'equated' with a sui generis constituent assembly of a sovereign nation.

Whether Article 370 had attained a permanent character?

Sibal argued that once the Constitution of J&K had been drafted and the J&K Constituent Assembly existence came to an end, Article 370 "froze in time" or attained a "permanent character".

This is because the existence of the J&K Constituent Assembly was necessary for deoperationalisation of Article 370 as per Article 370(3), Sibal told the court.

The court did not accept his argument and questioned how Article 370 could become "desuetude" when it continues to survive to date.

The court posed a query whether Article 370 had attained a status over and above the basic structure doctrine of the Indian Constitution that it is beyond the amending powers of the Indian Constitution.

Senior advocate Dushyant Dave, for advocate Rifat Ara Butt, argued that Article 370 was temporary only for the people of J&K because it was left to the J&K Constituent Assembly to decide its fate.

He also argued that Article 370 could only be amended through constituent powers which could have been either exercised by the J&K Constituent Assembly or through the passage of Article 368 of the Indian Constitution.

Residuary powers and their significance

Sibal argued that unlike Indian states for which "residuary powers" lie with the Union, for J&K the residuary powers rest with the State.

To this, CJI said: "Actually, as per the resolutions passed by the Constituent Assembly, it was initially contemplated that the residuary powers would rest with the states."

He added that it was eventually decided the residuary powers would lie with the Union and thus, Entry 97 of the Union List under the Seventh Schedule of the Constitution was inserted.

At a later hearing, the CJI underlined the Presidential Order of 1954's statement that the residuary powers rested with the State of J&K as limiting the power of the Union.

Senior advocate Menaka Guruswamy also argued that the retention of residuary legislative powers by the Constitution of J&K is unique to the state. "This is distinct from the rest of India where the residuary powers under Article 248 rests with the Parliament," she added.

Shah drew a connection between residuary powers and sovereignty by stating that the powers subsumed in Article 370 can either be termed "sovereign or residuary".

Shah submitted that since no merger agreement was signed, J&K maintained its "constitutional autonomy". He added that it was through the residuary powers to make laws that the State exercised its autonomy.

The CJI contested the attempt to link residuary powers with sovereignty. He substantiated his statement by referring to the Constitution (Application to Jammu and Kashmir) Order, 1954 (Presidential Order C.O. 48).

In the Order, Article 248 of the Indian Constitution, which vests "residuary powers" of legislation in the Indian Parliament, was amended with relation to J&K: "The Parliament has exclusive powers to make laws with respect to prevention of activities directed towards disclaiming, questioning, disrupting the sovereignty and territorial integrity of India or bringing about a secession of a part of the territory of India."

This puts it beyond the pale of doubt that sovereignty is vested with India, and no vestige of sovereignty was retained post the Instrument of Accession by J&K, the CJI remarked.

Dave sought to reinforce Shah's argument by stating that internal sovereignty, which can be understood from the residuary legislative powers exercised by the maharaja, was not lost, Dave had argued.

On the respondent's side, Venkataramani countered the submissions of the petitioners that the residuary legislative powers exercised by J&K were a part of a unique federalism promise offered by the Constitution of India on the accession of J&K with India by briefly touching upon the issue of federalism.

He said: "Neither asymmetrical federalism nor any other federal features have been infringed upon [through the deoperationalisation of Article 370]."

Mehta tackled the issue from a different angle. He read from the objective resolution adopted by the Constituent Assembly of India on January 22, 1947, which declared the assembly's "firm and solemn resolve to proclaim India as an independent sovereign republic."

He quoted paragraph (3) of the resolution which stated that Princely States that had joined the Union of India "whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union." 

Here, he pointed out that autonomy granted to these states has to be understood from the perspective that states were still autonomous in List II of the Seventh Schedule, while they continued to be a part of larger sovereignty existing with the Union of India.

Mehta referred to paragraph 4 of the resolution, which declared that "all power and authority of the sovereign, independent India, its constituent parts and organs of government are derived from the people."

Pointing out the use of the term 'derived from the people' from the resolution, he said: "The seeds of democracy were born for the first time [as it became clear] that sovereignty would vest [only] in the people of India."

Senior advocate V. Giri, appearing for intervenor All India Kashmiri Samaj, also argued against the petitioner's arguments on residuary powers by quoting extensively from B.R. Ambedkar.

Quoting Ambedkar, Giri said, "It may be that the residuary powers are given to the Centre and not to the states. But these features do not form the essence of federalism. 

"The chief mark of federalism, as I said, lies in the partition of the legislative and executive authority between the Centre and the units by the Constitution."

Retrogression of statehood

The petitioners argued that bifurcating J&K into two Union territories is a violation of Articles 1 and 3 of the Indian Constitution which do not allow retrogression of statehood.

Dhavan referred to the proviso of Article 3. According to the proviso, no Bill altering the name or boundary of any state can be introduced without the consent of the state legislature.

Dhavan argued that the Presidential proclamation of December 19, 2018 (when J&K was put under President's rule after being under governor's rule for six months) virtually created an amendment in Article 3 by taking out the condition precedent of the Article.

Under the first proviso to Article 3, the amendment has to be tabled before all state legislatures.

Dhavan remarked that the Presidential proclamation suspended a mandatory proviso which was in the context of all states.

Dhavan then referred to the second proviso in the context of J&K.

According to him, since the Parliament exercised the power of the state legislature, the Parliament gave consent to itself to introduce the Jammu & Kashmir Reorganisation Act, 2019 during the President's rule.

The Constitution (Application to Jammu and Kashmir) Order, 1954 (Presidential Order C.O. 48) added a further proviso to Article 3 which stated that no Bill for increasing or diminishing the area of J&K or altering the name or boundary of the State will be introduced in the Indian Parliament without the consent of the J&K legislature.

Dhavan questioned how the consultative power of the state legislature was replaced with that of the Parliament. He said: "Article 3 does not tolerate substitutes!"

Dave briefly referred to the Supreme Court's landmark decision In Re: The Berubari Union & Ors (1960) and argued that the interpretation of Article 3 of the Indian Constitution does not include Union territories within the definition of state.

Senior advocate Chander Uday Singh, representing petitioners Inderjit Tikoo, a Kashmiri performance artist and activist, journalist Satish Jacob, and Communist Party of India leader M.Y. Tarigami, challenged the reorganisation Bill.

He argued that Article 3 of the Indian Constitution does not permit converting states to Union territories.

To substantiate his argument, he referred to the Constitution (Eighteenth Amendment) Act, 1966 which allowed states to be interchanged with Union territories. However, the amendment stated that it would not apply to J&K.

Singh provided an alternative and submitted that if at all a state could be converted to a Union territory, it could only be done through the passage of Article 368.

For the respondents, Venkataramani told the court that under Article 3, border states are a "special class of territories" of India and the issues relating to it must be responded to accordingly.

While presenting the Reorganisation Bill in the Parliament, Union Home Minister Shah had said that the statehood of J&K would be restored at a later date when the situation in the state had improved.

On Day 12 of the hearings, the court inquired of Mehta about the status of restoration of statehood of Jammu and Kashmir (J&K).

Mehta said at the next hearing that J&K "will have to be infused with several things before it becomes a state".

He quoted the rising tourism figures in J&K to show that normalcy was returning.

On the other hand, Ramakrishnan had ended her submissions by stating: "Even if J&K flows with milk and honey, the argument that in order to secure people their constitutional rights and development, we have to destroy their entity and statehood is an unacceptable argument."

Could Article 370 be used to deoperationalise itself?

A major issue raised by the petitioners was whether Article 370 could be used to deoperationalise itself without the existence of the Constituent Assembly of J&K.

There are multiple legal questions regarding this issue.

Firstly, is 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 a colourable exercise of power?

Secondly, has the "concurrence" mentioned in the Presidential Order C.O. 272 to be the "recommendation" of the Constituent Assembly as per Article 370(3)? In other words, does the concurrence on which the Presidential Order C.O. 272 is based not sufficient constitutional foundation?

Thirdly, was the "consent" to the Presidential Order C.O. 272 invalidly given, as powers under the President's rule are "coterminous" with that of the legislative assembly of the State?

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, could the legislative assembly or the governor have given their consent to the Presidential Order C.O. 272?

Article 356

The petitioners argued that the transfer of power under the President's rule is purely temporary in nature. During such a proclamation, making fundamental federal change is unconstitutional.

Sibal examined whether Article 356 (provision in case of failure of constitutional machinery in states) could be extended permanently to shift the reins of power to the Union government.

He argued that the provision which is invoked to restore democracy was used to "decimate" or make "non-restorative permanent alterations" to J&K's constitutional status.

Dhavan also argued that no irreversible change could be made while exercising the powers under Article 356.

Sibal termed the entire exercise of deoperationalisation of Article 370 a "mosaic of illegalities attractive enough to be junked".