Supreme Court on Abrogation of Article 370: Some Aspects

Introduction

The Supreme Court’s (SC) recent ruling on the abrogation of Article 370 in Jammu and Kashmir (J&K) has stirred significant discussions on the dynamics of federalism in India. In a landmark 5-0 unanimous judgment, the court upheld, on December 11, 2023, the Centre’s actions, emphasising the overarching power of the Union in certain circumstances. The judgment has raised pertinent questions about the balance of power between the Union and the states, the sanctity of legal processes, and the historical context underpinning the region’s integration with India. The court’s reliance on its previous judgment in the S.R. Bommai case underscores the intricate balance between state autonomy and central authority.

On August 5, 2019, the Indian government revoked Article 370 and reorganised the state into two union territories: J&K and Ladakh. This move was upheld by the SC on December 11, 2023.

Now, J&K is fully integrated into the Indian Union; however, plans are underway to restore its statehood.

Article 3 of the Indian Constitution pertains to the formation of new states and the alteration of areas, boundaries, or names of existing states. The President must refer any such law to the concerned state legislature for their views.

Article 370: Historical Context

J&K was a princely state under British rule. Post-independence in 1947, its ruler, Maharaja Hari Singh, acceded to India to seek assistance against tribal militias from Pakistan. The Instrument of Accession (IoA) was signed by Jawaharlal Nehru and Maharaja Hari Singh, but it emphasised that J&K‘s accession to India would be conditional, retaining its right to have its own constitution and a significant degree of autonomy.

Article 370—a unique provision that granted the state of J&K a distinct autonomous status within the Indian Union—was incorporated into the Indian Constitution on October 17, 1949 to protect the special status of J&K. N. Gopalaswami Ayyangar was entrusted with drafting Article 370. The Article ensured that J&K had a distinct relationship with India, granting it autonomy in various matters except defence, foreign affairs, and communications. This Article 370 also limited Indian Parliament’s jurisdiction regarding J&K.

The conditions in J&K, including ongoing conflicts and the absence of a state legislature, were cited as reasons for the temporary provision of Article 370. It was meant to be an ‘interim system’ until J&K could adopt its own constitution.

Instrument of Accession

Post-independence, the Indian Independence Act of 1947 provided princely states with three options: (i) to remain independent; (ii) join the Dominion of India; or (iii) join the Dominion of Pakistan. Joining either of the dominions was formalised through an Instrument of Accession.

J&K’s accession to India was indeed based on specific terms, but it also had special conditions distinct from other princely states. The IoA, signed by Maharaja Hari Singh of J&K, differed from the standard accession agreements due to the unique circumstances and the specific terms negotiated between the state and the Indian government.

• Article 370 was inserted with the understanding that it would be an interim arrangement, based on the unique circumstances under which J&K acceded to India. The Constituent Assembly of J&K was given the authority to determine which sections of the Indian Constitution would apply to the state.
• Stemming from Article 370, Article 35A, introduced in 1954, empowered the J&K legislature to define the state’s ‘permanent residents’ and grant them special rights and privileges.
• For the extension of central laws in matters included in the IoA, the state government’s consultation was made compulsory. However, for other matters, the state government’s concurrence was mandatory.

Article 35A was incorporated into the Constitution through a Presidential Order in the year 1954. Unlike most other articles, Article 35A does not appear in the main body of the Constitution, but in Appendix I.

It is a contentious provision that bestows unique rights and privileges upon the permanent residents of J&K. It authorises the legislature of J&K to define the term ‘permanent residents’ of the state. It also grants special rights and privileges exclusively to these individuals. These rights can span various domains, from property ownership to educational and employment opportunities.

Some restrictions akin to those under Article 35A also exist in other states, like certain provisions in the Northeastern states and Himachal Pradesh. Domicile-based reservations in admissions and employment are also practised in states like Andhra Pradesh under Article 371D. While J&K had Article 370, other states in the Indian Union have special provisions under Article 371, ranging from 371A to 371I. These provisions cater to the unique historical, cultural, and administrative contexts of these states.

• Article 370 also granted the President of India the authority to amend its provisions and scope, ensuring a level of flexibility in its application.

Argument for Abrogation

• The special status accorded to J&K under Article 370 was intended to provide a unique arrangement to facilitate the state’s integration into the Indian Union. Therefore, Article 370 was conceived as a ‘temporary provision,’ contingent upon specific conditions, and it was expected to cease when the objectives outlined in the article were met or a final resolution regarding the state’s accession to India was achieved.
• The decision of the government to repeal Article 370 was based on its belief that it hindered the development of the region and made it more difficult for J&K to integrate with the rest of India. It argued that the abrogation would lead to improved governance, equal rights and opportunities, and socioeconomic growth in the region.
• The government posited that the special status had impeded the region’s development and integration, asserting that its removal would bolster security measures and anti-terrorism operations. Additionally, it would also make it easier to implement national policies and initiatives, which previously were not fully applicable in J&K.
• The ruling party consistently voiced its intention to abrogate Article 370 in its election manifestos for the 2009, 2014, and 2019 General Elections. Being at power, they acted upon this commitment.
• Despite significant domestic and international scrutiny and criticism, the government, backed by a parliamentary majority, demonstrated the political resolve to enact the changes.

Arguments against Abrogation

• The petitioners asserted that Article 370, initially conceived as a temporary provision, effectively gained permanency following the dissolution of the Constituent Assembly in 1957. They contended that without the dissolution, any modifications or repeals to Article 370 would have necessitated the Constituent Assembly’s consent.
• Critics and opposition leaders argued that the intent behind the move was to alter the demographic composition of the Muslim-majority region, an allegation strongly refuted by the government.
• The petitioners claimed that the central government overstepped its authority by assuming a role originally reserved for the Constituent Assembly. They argued that only the Constituent Assembly possessed the mandate to determine the Article’s fate.
• The lack of agreement from the state government, particularly during the president’s rule, is highlighted by the petitioners as a significant constitutional lapse. They believed that such a pivotal decision should not have proceeded without the endorsement of the state’s elected representatives.
• Questions were raised by the petitioners regarding the governor’s authority. They challenged the legality and constitutionality of the governor’s choice to dissolve the legislative assembly, particularly without the advice of the council of ministers.
• The petitioners contended that the methods utilised to abrogate Article 370 were unconstitutional. They asserted that while the intended result might have been achieved by repealing the Article, the procedures employed to achieve this goal were legally questionable.

Methods Used for Abrogation

Initiation via presidential order under Article 370(1) On August 5, 2019, President Ram Nath Kovind issued a Constitutional Order CO 272, invoking the provisions of a constitutional order, Article 370(1) of the Constitution. This directive conferred upon the president, in partnership with the J&K administration, the authority to delineate the specific provisions of the Indian Constitution applicable to the region.

Strategic amendment to Article 367 An amendment was introduced to Article 367 of the Constitution. Article 367 was revised to redefine the term “Constituent Assembly of the State…” from Article 370(3) to the “Legislative Assembly of the State.” This change redirected the authority from the obsolete Constituent Assembly of J&K to its current Legislative Assembly, paving the way for future amendments to Article 370 based on the Legislative Assembly’s recommendations.

As per Article 370(3), the article can be deleted by Presidential order. However, it originally mandated that such an order should be preceded by the concurrence of J&K’s Constituent Assembly.

Parliamentary consent through CO 273 The CO 273 was promulgated, securing the consent of Parliament, which had by this point assumed the legislative powers of the J&K legislature. The order explicitly stated that Article 370 should be rendered ineffective or nullified.

Resolution for the repeal of Article 370 Drawing upon the revised frameworks of Article 370(1) and Article 367, the legislative bodies deliberated and endorsed the “resolution for repeal of Article 370 of the Constitution of India.” This legislative manoeuvre was the definitive stride towards the formal annulment of Article 370.

Role of the governor during president’s rule With the culmination of the governor’s rule in J&K, the President of India invoked the authority vested by Article 356(1)(b) of the Constitution. This proclamation signified that the powers previously held by the state’s legislature would now be exercised by or under the supervision of Parliament of India.

Institution of the Jammu and Kashmir Reorganisation Act, 2019 Post the revocation of Article 370, the legislative apparatus introduced the Jammu and Kashmir Reorganisation Act, 2019. This landmark legislation outlined the bifurcation of the erstwhile state into two distinct union territories: J&K (with legislative assembly) and Ladakh.

Impacts of the Abrogation

• The territories of J&K and Ladakh have been integrated into the nation’s mainstream. Residents can now enjoy rights enshrined in the Indian Constitution and benefit from central laws, similar to other Indian citizens.
• The region has experienced socio-economic advancements, including the empowerment of its people, the removal of unjust laws, and a focused effort towards comprehensive development, all aimed at fostering peace and progress.

What has Changed for J&K’s Women?

Property rights and domicile status Before August 2019, J&K women marrying outside the state faced restrictions on property rights. However, the central government notification now grants the domicile status to the spouses of such women, allowing them to purchase land and apply for state government jobs, thus safeguarding women’s property rights.

Improved security The decline in terrorist activities, as reported by the Ministry of Home Affairs, has positively impacted women’s safety. The decrease in terror-related incidents has contributed to a more secure environment, which is beneficial for women.

Industrial development schemes and economic revitalisation plans are expected to generate employment opportunities for women, enhancing their financial security and confidence.

• The introduction of elections for Panchayati Raj Institutions (PRIs) has established a 3-tier system of grassroots democracy in J&K, encompassing Panch, Sarpanch, block development councils, and district development councils.
• Following the abrogation, there has been a marked reduction in violence in J&K. The frequency of terrorist incidents has declined, and security forces have successfully neutralised numerous militants, indicating an enhancement in security conditions.
• Initiatives such as the Prime Minister’s Development Package (PMDP) and the Industrial Development Scheme (IDS) have been rolled out to stimulate economic growth, resulting in increased investment, job opportunities, and growth in the Gross State Domestic Product (GSDP).
• The government’s investment in infrastructure projects, including roads, bridges, tunnels, and power lines, has enhanced connectivity and spurred development.
• Enhanced security measures and improved marketing strategies have attracted a growing number of tourists to J&K, with the region witnessing a record influx in recent years.
• The abrogation has reshaped the political landscape of the region, precipitating shifts in the narratives of mainstream political parties and their stance towards the altered status quo.
• Despite the evident positive developments, concerns persist regarding democratic values, governance, and the potential implications of the changes, as underscored by various observers and reports. While traditional militancy has seen a notable decline, the emergence of ‘hybrid militancy,’ characterised by younger recruits and evolving tactics, suggests that challenges persist in the security domain.
• It has garnered attention at the international level. Some neighbouring countries and international bodies have expressed concerns or issued statements regarding these developments.

Other Changes in J&K

• Article 35A has been rendered ineffective. The Presidential Order of 2019 extends all provisions of the Indian Constitution to J&K, including the chapter on fundamental rights, thereby making discriminatory provisions of Article 35A unconstitutional.
• The position of the Sadr-i-Riyasat has been replaced by the governor of the state, who will act on the advice of his council of ministers. Furthermore, the state will no longer have a governor but a lieutenant governor, similar to the administrative set-up in Delhi and Puducherry.

It is anticipated that the changes may open up opportunities for non-residents to buy land and seek employment in J&K, potentially leading to demographic shifts over the long term.

The changes were enacted under Article 370 of the Indian Constitution, which allows for exceptions and modifications regarding the application of certain provisions to J&K. However, the process has been controversial, as it did not involve consultation with the now-dissolved J&K Assembly.

Supreme Court’s Judgment

On sovereignty of J&K The SC held that J&K did not retain sovereignty referencing a 1949 proclamation by Yuvraj Karan Singh, which stated that J&K would be governed by the Indian Constitution, essentially denying any distinct sovereignty to J&K.

The chief justice highlighted that Article 370(1) of the Indian Constitution made J&K an integral part of India without any modifications. He cautioned that granting unique autonomy to J&K could set a precedent for other states with special arrangements.

On temporary nature of Article 370 The SC emphasised on the transient and temporary nature of Article 370, and pointed out its placement in the Constitution’s temporary provisions (Part XXI). It further clarified that the dissolution of the Constituent Assembly could not limit the powers of the president to abrogate Article 370.

On Constitution’s validity during the president’s rule The petitioner argued that the Union took irrevocable actions without the state’s consent during the period of the president’s rule. Both the CJI and Justice Kaul cited the 1994 ruling in S.R. Bommai v. Union of India case, which validated the actions of the president in revoking J&K’s special status and defined the parameters of the proclamation of the president’s rule.

The SC clarified that the court would not address the president’s ability to invoke the president’s rule under Article 356. Instead, the focus was on the actions taken during the president’s rule. The president can make irreversible decisions, even including the dissolution of the state assembly but his powers are subject to both judicial and constitutional oversight.

The SC provided clarity on the scope and limitations of judicial review concerning actions taken under president’s rule, emphasising the balance between administrative necessity and constitutional safeguards.

The S.R. Bommai v. Union of India case refers to a landmark 1994 judgment by the Supreme Court of India that interpreted and defined the provisions of Article 356 of the Constitution. Article 356 outlines the conditions under which president’s rule can be imposed in states in the event of a failure of constitutional machinery.

Some key aspects of the Bommai judgment include:

• The SC held that the President’s decision to impose President’s rule can be subjected to judicial review based on grounds such as illegality, mala fide, extraneous considerations, abuse of power, or fraud.
• The ruling established that the President’s proclamation of President’s rule requires approval from both the Houses of Parliament within two months. If not approved, the previously dismissed government would be automatically reinstated.
• The judgment emphasised that states are not mere extensions or appendages of the Centre. The Centre cannot unduly infringe upon the powers reserved for states, highlighting the federal nature of India’s governance structure.
• Post the Bommai verdict, the instances of President’s rule being imposed reduced significantly, indicating a more restrained application of this constitutional provision.
• In J&K’s context, the Bommai judgment provided a foundational framework for understanding the constitutional validity of actions taken by the president, especially concerning significant decisions like the abrogation of Article 370.

On transfer of legislative powers to Parliament Article 356(1)(a) permits the President to delegate state legislative powers to Parliament. Dismissing arguments about distinguishing between different legislative powers, the SC asserted that all constitutional powers of the legislative assembly align with the provisions of Article 356.

On validity of CO 272 and CO 273 The amendment in the CO 272, which changed the term ‘Constituent Assembly’ to ‘Legislative Assembly’, was deemed invalid due to its nature and the lack of the state government’s approval. However, the court held that CO 272 is valid to the extent that it applies all the provisions of the Constitution of India to J&K.

CO 273, which rendered Article 370 inoperative, was upheld, emphasising the president’s decision-making authority and the complete integration of J&K with India.

On inoperativeness of J&K Constitution The SC concluded that with the implementation of CO 272 and CO 273, the entire Indian Constitution now applies to J&K, making the state’s constitution ineffective.

On reorganisation of J&K The Jammu and Kashmir Reorganisation Act, 2019, which bifurcated J&K into two union territories, was challenged constitutionally. While the court refrained from deciding on J&K’s altered status, it advocated for the reinstatement of J&K’s statehood and called for prompt legislative assembly elections.

Justice Kaul’s Recommendation Justice Kaul proposed the formation of a ‘Truth and Reconciliation Commission’ to address human rights violations in J&K, underscoring the state’s responsibility for reparative actions, despite the court’s constraints.

A Truth and Reconciliation Commission (TRC) is a formal body set up to address past wrongdoings and human rights abuses, especially in contexts where there has been a history of conflict or oppression. The primary goal is not only to acknowledge these wrongs but also to foster reconciliation among affected individuals and communities.

• TRCs primarily concentrate on past events rather than ongoing issues or conflicts. They investigate a series of events or a pattern of abuses that occurred over a certain period.
• TRCs actively engage with victims, witnesses, and communities affected by the abuses, collecting first-hand accounts and testimonies.
• TRCs are usually temporary bodies, established with the specific aim of concluding their work and producing a final report.

For their legitimacy and authority, TRCs are officially authorised or empowered by the state or entity under review.

Countries with TRCs

South Africa One of the most renowned TRCs established in 1995 after the end of apartheid, aimed at addressing human rights violations during the apartheid era.

Canada The Canadian TRC focused on the legacy of the Indian Residential Schools system, providing a platform for indigenous communities affected by the forced removal of children to share their experiences.

Australia Established to address the mistreatment of indigenous children, especially the ‘Stolen Generations,’ who were forcibly removed from their families.

Sri Lanka and Nepal Both the countries established TRCs to address past conflicts and human rights violations.

While TRCs do not always lead to prosecutions, they play a crucial role in revealing the truth, acknowledging victims, and fostering reconciliation. They often bring out comprehensive reports that serve as historical records, aiming to prevent the recurrence of past wrongs and promote societal healing and unity.

Conclusion

The SC’s verdict has ignited a discourse on the interplay between federal principles, constitutional ethos, and the imperatives of national integration. While the court’s decision aligns with the government’s actions and underscores the historical efforts to integrate the region with the Union, it also raises pertinent concerns about the sanctity of federalism and democratic processes in India. The endorsement of an expansive interpretation of presidential powers, especially during a president’s rule, potentially sets a precedent that could infringe upon the rights and autonomy of states. Moreover, the court’s omission in addressing critical aspects related to the reorganisation of J&K into union territories leaves certain constitutional questions unanswered. Nevertheless, the verdict reaffirms the “temporary provision” nature of Article 370, emphasising its origin during times of internal conflict and transition. It underscores that J&K’s special status was a facet of asymmetric federalism rather than a reflection of internal sovereignty. As India navigates this pivotal juncture, the judgment calls for a balanced approach that upholds constitutional values, restores democratic processes, and fosters reconciliation efforts in the region.

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