Article 370 Done & Dusted

What Next?
 Introduction

• The Supreme Court gave its verdict on

the Union government’s 2019 move to
amend Article 370 of the Constitution.

• The court held the Constitutional order

that abrogated Article 370 as valid.
• A five-judge Constitution bench, presided by Chief Justice of India
(CJI) DY Chandrachud, had reserved its verdict on as many as 23
petitions in the matter on September 5 this year.

• The bench also comprised Justices S K Kaul,

Sanjeev Khanna, B R Gavai and Surya Kant.
 • CJI DY Chandrachud said that Jammu and Kashmir held no
internal sovereignty after accession to India.

• He said there was no prima facie case that the President’s 2019
orders were mala file (in bad faith) or extraneous exercise of power.
• While the court said the reorganization of the erstwhile state into
Union Territories in 2019 was a temporary move, it directed the
Centre for the restoration of statehood and for Legislative Assembly
elections to be held.
 A timeline of events in Jammu & Kashmir
• October 26, 1947: Following the invasion of Jammu & Kashmir by tribesmen
from the Northwest Frontier Province, with the Pakistan military’s support,
Maharaja Hari Singh sought Indian assistance.

• This eventually led him to sign the

‘Instrument of Accession (IoA) of Jammu
& Kashmir’.

• IoA gave India the power to legislate on

the region’s defence, foreign affairs, and
communication matters.
• May 27, 1949: The Constituent Assembly of India cleared the draft
Article 370 as per the terms in the Instrument of Accession.

• May 1, 1951: Dr Karan Singh, the crown prince of J&K, issued a

proclamation convening the Constituent Assembly for the State.
• 1952: The Delhi Agreement was signed between J&K PM Sheikh
Abdullah and Indian PM Jawaharlal Nehru.

• It expanded the relationship between

India and Jammu and Kashmir.
• May 15, 1954: Article 35A was introduced through a Presidential order to
protect laws passed by the state legislature regarding permanent
residents of the state.

• November 17, 1957: The Constitution of the State of J&K was adopted
and it formally came into force on January 26, 1958.

• 1965: The titles of Prime Minister and Sadr-i-Riyasat were officially

changed to Chief Minister and Governor respectively, in the State of
J&K.
 Scrapping of Article 370

• Aug 5, 2019: Then President Ram Nath Kovind issued Constitutional

Order 272, a presidential order, to amend Article 367 – which deals with
the interpretation of the Constitution.

• CO 272 inserted a proviso in Article 367 which stated that the

reference to the “Constituent Assembly” in Article 370(3) would
instead be a reference to the “Legislative Assembly”.

• This paved the way for changes to Article 370 itself.

• Article 370(3) reads: “Notwithstanding anything in the foregoing provisions
of this article, the President may...declare that this article shall cease to be
operative or shall be operative only with...exceptions and modifications...as
he may specify: Provided that the recommendation of the Constituent
Assembly of the State referred to in Clause (2) shall be necessary before the
President issues such a notification.”
• Within hours of the President issuing CO 272, the Rajya Sabha
recommended that Article 370 should cease to operate.

• Since J&K was then under the President’s Rule, the

Governor of the erstwhile state assumed the powers of
the Legislative Assembly.

• Parliament made the recommendation

on behalf of the Governor.
 • Aug 6, 2019: President Kovind issued a second proclamation, CO 273,
operationalizing the Rajya Sabha's recommendation. This meant that
Article 370 effectively ceased to operate.

• Aug 9, 2019: Parliament

passed “The Jammu and
Kashmir Reorganization Act,
2019”, bifurcating the state
into two Union Territories.
 Argument in the Court
Petitioners

• TEMPORARY PROVISION THAT BECAME PERMANENT: Article 370 was

meant to be temporary until the constituent assembly for J&K which existed
from 1951 to 1957, took a decision on whether to abrogate it.

• Since no decision was taken, it became permanent.

• Thereafter, there was no constitutional process

left to touch Article 370 and changes, if any, could
only have been made through a political process.
• The main issue to be decided is whether Parliament could have assumed the
role of the constituent assembly to make the amendments.

• Parliament could not have converted

itself into a Constituent Assembly.

• Accepting that it can do so, will have

enormous consequences for the
future of the country.

• It was done in a politically motivated

manner, and was a fraud on the
Constitution.
• ACCESSION & INTERNAL SOVEREIGNTY: J&K historically had
a unique relationship with the Union.

• There was no merger agreement

between J&K and the Union, but only
the Instrument of Accession (IoA).

• Hence there is no transfer of

sovereignty, and the state’s autonomy
has to be maintained.
• CONCURRENCE OF THE J&K GOVT: Article 370 provided limitations
regarding the power of Parliament to make laws for J&K.

• To make laws on a subject in List I (Union List) or List III (Concurrent

List), which is not covered by the IoA, concurrence of the state
government, which means concurrence of the people of the state via the
Council of Ministers, is needed.

• ROLE OF THE GOVERNOR: The J&K Governor could not have

dissolved the Legislative Assembly without the aid and advice of the
Council of Ministers.
• REORGANISATION, DOWNGRADING TO UT NOT PERMISSIBLE: The
proviso to Article 3 makes it mandatory for the President to refer the
Bill for reorganization of a state to the legislature.
• But the consent of the J&K Legislative
Assembly was not taken before
introducing the reorganisation Bill.

• A state cannot be extinguished and

converted into a UT — that is contrary
to all principles of the representative
form of government.
 • NOTHING TO SHOW THAT ARTICLE 370 FAILED: Article 370
integrates J&K with India.

• It is not the Centre’s case that it has not

worked for the last seven decades.

• There is no example to show that it

failed, and it is therefore unfathomable
why it was done overnight.
 Centre

• DUE PROCESS WAS FOLLOWED: Arguments that the manner in

which the presidential proclamations were issued were a fraud on
the Constitution, are completely misconceived. There was no
deviation from due process.
 • SOVEREIGNTY WAS SURRENDERED: The erstwhile state of J&K had
fully surrendered its sovereignty to the Union of India upon accession.

• The petitioners are confusing

internal sovereignty with
autonomy.
• KARAN SINGH’S PROCLAMATION: The proclamation issued by Karan
Singh, on November 25, 1949, said that the Government of India Act, 1935,
which until then governed the Constitutional relationship between J&K and
the dominion of India, will stand repealed.
• This is beyond any IoA or merger; it is accepting the supremacy
of the Indian Constitution and surrendering sovereignty to it,
where the sovereign is ‘We the people of India’.
• THERE CAN’T BE TWO CONSTITUTIONS: Unlike the Constituent Assembly
formed for drafting the Indian constitution, the J&K Constituent Assembly
was not a plenary Constituent Assembly — because by that time sovereignty
had already been merged.

• This furthers the point that the words “Constituent Assembly”

in Article 370(3) can be read only as ‘Legislative Assembly’.
• UT TEMPORARY, BUT RETURN OF STATEHOOD MAY TAKE TIME:
UT status for J&K is temporary, but no specific timeline for
restoration of statehood can be provided.

• This is because of the peculiar circumstances the state has passed

through with repeated and consistent disturbances over decades.
 Comments and queries by Bench

• ON THE POSITION OF ARTICLE 370 IN THE CONSTITUTION: If Article

370 became permanent after 1957, why was it then placed in Part XXI of the
Constitution which deals with “temporary, transitional and special
provisions”?

• If it became permanent, does that mean there is a provision of

the Constitution, besides the basic structure, which lies even
beyond the amending power of Parliament?

• Sub-clause 3 of Article 370 envisages a process by which it can

be de-operationalised; thus, it is very difficult to propose that
Article 370 has such a permanent character that it can never
be amended.
• ON THE WAY TO SEEK PEOPLE’S OPINION: In a constitutional democracy,
the opinion of the people has to be sought through established institutions.
Within a Constitution like ours, there is no question of a referendum.

• ON ARTICLE 370 AND ARTICLE 1: The question is whether

Parliament in the exercise of its powers under Article 368 to amend
the Constitution, can amend Article 370.
 • The reference to Article 1, a permanent feature of the
Constitution of India, in Article 370 is “a clear indicator” that the
latter was “never intended to be permanent”.
 • ON THE COMPETENCE OF PARLIAMENT: Does the fact that Parliament
can’t touch a State List item while enacting a law, retract from the fact
that all these states ceded sovereignty to the dominion of India?

• Restraint on the power to enact legislation is

implicit in the scheme of the Constitution.

• The argument that Article 370 became permanent after the J&K Constituent
Assembly ceased to exist in 1957 is belied by the practice of issuing the
Constitution (Application) Orders from time to time, modifying the
Constitution in relation to the erstwhile state.
• ON HOW LONG THE UT CAN EXIST: “Should we not permit Parliament
to postulate that for a certain period, in interest of the preservation of the
nation itself…this particular state shall go in the fold of UT, on the clear
understanding that this shall revert back to a State?”
 Previous cases Referred by Court
Prem Nath Kaul v Union of India (1959)
• Factual Background: This was one of the earliest cases that dealt
with Article 370 and the role of the Constituent Assembly of Jammu
and Kashmir.
 • As per Article 370(1), the President of India can apply provisions
of the Constitution of India in Jammu and Kashmir, after the
concurrence of the Jammu and Kashmir Constituent Assembly.

• In this case, the validity of the Big

Landed Estates Abolition Act, 1950
was challenged.

• Maharaja Yuvaraj Karan Singh

enacted the law to boost
agricultural production by
transferring the land to tillers
from estate owners.
• Issue: Does the Maharaja of Jammu and Kashmir have legislative
authority to make laws after acceding to the dominion of India?

• Arguments: The petitioner argued that he had a

right over his land, and pleaded to have the
Court declare the Act as void and inoperative.

• He contended that the Maharaja had no

legislative authority as a result of Article 370.
 • Judgement: The Supreme Court upheld the Act affirming
that the Maharaja possessed the legislative powers required
to enact it.

• The ruling stated that “Indian Constitution makers attached great

importance to the final decision of the Constituent Assembly of J&K”
ensuring that any “exercise of powers conferred to the Parliament
and the President” is “conditional on the final approval” of the
Constituent Assembly.
 • The judgement also remarked on the powers of
the President to abrogate Article 370.

• It stated that Article 370(3) “authorizes the President to declare by a

public notification that this article shall cease to be operative or shall be
operative only with specified exceptions or modifications, but this
power can be exercised by the President only if the Constituent
Assembly of the State makes a recommendation in that behalf.”
 Puranlal Lakhanpal v The President of India (1961)

• Factual Background: A Presidential Order amended Article 81 of

the Indian Constitution to allow representation of J&K in the Lok
Sabha only through indirect elections.

• The modification permitted the representation

of six people from Jammu and Kashmir.

• The President was empowered to select these

members after consulting the Jammu and
Kashmir legislature.
 • Issues: What is the extent of the President’s powers to modify
provisions of the Constitution of India while applying them to
J&K?

• Arguments: The petitioners had argued that the President “exceeded his
powers” and could not make “radical alterations” to provisions of the
Constitution while making them applicable to the state of J&K

• They contended that the President substituted direct election

with nomination which was not justified under Article 370(1).
 • Judgement: A five-judge bench of the Supreme Court
held that the President has wide powers to modify
provisions of the Indian Constitution.

• The bench dismissed the petitioners’ “radical alteration” argument and

observed, “that the word “modification” used in Art. 370(1) must be given
the widest meaning in the context of the Constitution and in that sense it
includes an amendment and it cannot be limited to such modifications as
do not make any radical transformation.”
 Sampat Prakash v State of Jammu & Kashmir (1968)

• Challenge: The President of India issued an order extending

the application of Article 35(c) in Jammu and Kashmir.

• Article 35(c) was a special provision

which provided immunity to preventive
detention laws from fundamental rights
claims in the state.

• Originally, Article 35 (c) was inserted

through a Presidential Order in 1954,
which was later extended in 1959 and
1964.
• Issue: Can the President extend the application of an order under
Article 370 (1) after the dissolution of the J&K Constituent Assembly?

• Arguments: The petitioners argued that “the Article contained only

temporary provisions which ceased to be effective after the Constituent
Assembly of the State had completed its work by framing a Constitution.”
 • Judgement: Article 370 would continue to exist even after the
dissolution of the Constituent Assembly of Jammu and Kashmir.

• Article 370(3) clearly dictates that Article 370 would cease to be

operative only on the recommendation of the Constituent
Assembly of the State.

• “No such recommendation was made by the Constituent Assembly

[at the time of dissolution].” In other words, Article 370 was
permanent.
 Maqbool Damnoo v State of Jammu & Kashmir (1972)

• Challenge: The President of India issued an order stating that the phrase
“Sadar-i-Riyasat” in the explanation of Article 370 of the Constitution was
to be construed as a reference to the Governor of Jammu and Kashmir.

• The Sadar-i-Riyasat was the elected head of the state.

• The petitioner in this case was detained under the

Jammu and Kashmir Preventive Detention (Amendment)
Act, 1967, which was enacted after the assent of the
Governor of Jammu and Kashmir.
 • Issue: Whether the petitioner’s detention was invalid because
it was not carried out in accordance with the law?

• Arguments: The petitioner argued that he was detained under a law that
was enacted after taking the assent of the Governor and not the Sadar-i-
Riyasat, who was the recognised head of the state under the Constitution
of India.

• Further, replacing the Sadar-i-Riyasat with the Governor could only be

carried out through an amendment to the Constitution of India.
 • Judgement: The five-judge Constitution Bench held that the
Governor is the “successor to the Sadar-i-Riyasat.”

• Further, they agreed with the Union’s contention that the Governor was
the head of the state, as per an amendment in the Jammu and Kashmir
Constitution, which was approved by the Sadar-i-Riyasat.
 Truth and Reconciliation Commission
• Justice Sanjay Kaul, in his opinion, recommended setting up a Truth and
Reconciliation Commission to look into alleged violations of human
rights by both state and non-state actors in J&K.

• He said "Inter-generational trauma is felt by people. The first step

towards healing the wounds is the acknowledgement of the acts of
violations done by the state and its actors"
 • It also known as a ‘truth and justice commission’ or simply, a
‘truth commission’

• It is an official mechanism to not just acknowledge, but also reveal,

wrongdoings by a government (or sometimes non-state actors or
combatants) so that conflicts of the past can be addressed and resolved.
• In her classic review of 40 truth commissions, Priscilla B
Hayner defined a truth commission as one that:

(1) is focused on the past, rather than in ongoing events

(2) investigates a pattern of events that took place over a

period of time

(3) engages directly and broadly with the affected

population, gathering information on their experiences

(4) is a temporary body, with the aim of concluding with a final

report

(5) is officially authorized or empowered by the state under review

 Developments After Abrogation

• Roads- Worlds highest railway bridge over Chenab river. Rate

of laying of roads increased from 6km/day to 21 km/day.

• Travel time has decreased considerably due to

construction of a number of canals.
• Power- Uri and Dulhasti phases were
completed.

• Power generation capacity has been

increased from 3505 MW to 8691 MW in
just 3 years.
 • Health- Addition of 16 medical colleges, 14 tertiary care hospitals, 20
district hospitals, 1578 health care centers

• 2 AIIMS, 2 state cancer institutes and

15 nursing colleges were sanctioned.

• Intake capacity of medical colleges

increased by addition of 600 MBBS
seats,68 PG seats and 140 DNB seats.

• Universal Health Coverage of Rs

5,00,000 per household was extended.
• Water- Water supply to every house In
Srinagar and Ganderbal under the
flagship of Har Ghar Jal.

• 2 major irrigation projects of Main Ravi

Canal and Tral Lift Irrigation Scheme.
 • Higher Education- Sanctioned one
engineering college at Poonch and
architect colleges at Jammu and
Srinagar.

• PM Scholarship for thousands of young

students.
 • Central Flagship Programmes-
Extension of PM AWAS YOJANA for
thousands of households in both rural
and urban areas

• Swachcha Bharat Yojana extended

leading to a five fold increase in the rate
of cleaning of Dal Lake.

• Panchayati Raj implemented: Extension

of 73rd Constitutional Amendment Act.
• Employment opportunities- Record number of aspirants
participated and got selected in army recruitment programs.
 Way Forward

• Centre has already suggested a way forward for Jammu & Kashmir,
however it should be implemented at the earliest

• Solicitor General Tushar Mehta said that Jammu and Kashmir is

ready for polls now and three elections are due soon — panchayat,
municipality and State legislative assembly elections .
• Centre has previously emphasized that Union Territory status
is a “temporary phenomenon” and its statehood shall be
restored.

• Hence, Centre should walk the talk and after

restoration of statehood should build upon the
development outcomes

• On the part of local leadership, it is their duty to

support the Centre in restoration and they should
also give way to new leadership from ground level.
QUESTION