by Yuvraj Trivedi 13 January 2022
Introduction:
Since India’s independence, the state of Jammu and Kashmir has been a source of contention. Article 370 of India’s constitution was a one-of-a-kind clause that reflected the country’s integration process. This article established a separate constitution for Jammu and Kashmir, as well as a separate flag with a distinct identity and autonomy. Prior to the country’s independence, the state was controlled by a monarchy, with Maharaja Hari Singh as King of Jammu and Kashmir.
On August 5th, 2019 the government of India revoked the special status by abrogation of article 370.[i] Its was the first provision that had a huge amount of polarized opinions since the enactment of the constitution of India, 1950. However, the Indian government removed Kashmir’s unique status, declaring the state’s constitution null and void and demoting it to the status of a union territory. Article 35, which was introduced to Article 370 in 1954, included rules that ensured that only Kashmiri people may purchase property in the state, so preserving an unique Kashmiri identity.
The gradual growth of the BJP lead to the abrogation of the article. Many residents of Jammu and Kashmir(J&K) made efforts to repeal it.[ii] When a BJP functionary challenged the constitutional legality of the clause before a three-judge bench of the Supreme Court of India, matters came to a head.[iii]The BJP has demonstrated the ability to use the inherent flexibility in the federal order to centralise power and reshape the size, powers, and stature of a constituent unit of the Indian Union[iv] — the only unit with a Muslim majority population — by abrogating Article 370 and bifurcating Jammu and Kashmir State into two Union Territories. Within a year two presidential orders came for abrogation and division of J&K into two separate Union territories. The Supreme Court has now heard challenges to both the abrogation and the split. [v][vi]
According to Article 370, the President has the authority to declare it inoperative, but only with the permission of the Constituent Assembly. During its abrogation in 2019, this protocol was not followed. Instead, India’s President, Ram Nath Kovind, declared Article 370 null and void on the basis of two constitutional orders, Constitutional Orders (C.O.) 272 and 273, and without the assent of Kashmir’s state parliament.[vii]
History of Article 370:
With the end of British Raj, India and Pakistan gained their Independence. Most of the states had already decided to join either India or Pakistan, some states wanted their own independence.[viii] Kashmir was one of them as it stood out due to its Muslim majority population in a Hindu majority nation.[ix] Although Maharaja Hari Singh, the ruler of Kashmir, was determined to maintain the state’s independence, his position was soon jeopardised owing to a tribal invasion within the state, with help coming from beyond the state’s borders. Maharaja sought assistance from the Indian government, fearful for the state’s integrity. But later on an interim government under Sheikh Abdullah replaced the Maharaja.[x]
After that J&K joined the constituent assembly, whose sole purpose was to enact the constitution. A draught Article 306A[xi], which later became Art 370[xii] in the final Constitution, was written specifically for J&K, taking into account the state’s unique circumstances. Jammu and Kashmir was admitted to the Constituent Assembly of India on May 27, 1949. From May to October 1949, the Prime Minister of India, Jawaharlal Nehru, and his colleagues debated Article 370 with the Prime Minister of Jammu and Kashmir, Sheikh Mohammad Abdullah, and his colleagues for five months.[xiii]
The state’s officials had negotiated with the Union of India over the state’s membership in the Union.[xiv] A solemn covenant is recorded in Article 370.No party has the authority to unilaterally change or repeal it, except in line with the provisions of the agreement. N. Gopalaswamy Ayyangar became the principal drafter of the Art.370.[xv] He attempted to resolve the disputes between Abdullah and Patel, and Art. 370 was born after extensive talks. Four specific protections for Jammu and Kashmir are enshrined in Article 370.
Article 368 that gives parliament the power to amend the constitution, but to implement such order permission from J&K constituent assembly is necessary.[xvi] Before the end of J&K constituent assembly (CA) it requested for the continuation of Art 370. It is worth noting that even after the dissolution of the J&K CA, the President continued to make directives under Art 370 (1), slowly but steadily diminishing J&K’s authority.[xvii] Such rulings are obviously questionable, because any expansion of Union authority or the Constitution had to be granted by the J&K CA, and the State Government could not have continued to give its consent after the J&K CA was disbanded. Because of this purportedly nefarious interpretation of the Article, J&K formed a State Autonomy Committee in 1999, which suggested a thorough overhaul of the Article in order to bring it back into line with its original structure.[xviii]
Article 370: Permanent or Temporary
The government’s move to repeal the special provision for Jammu and Kashmir has raised questions about the provision’s duration. The initial solution to this question can be found in the argument over the Constituent Assembly, when Ayyangar stated that until a Constituent Assembly is formed, only an interim arrangement can be made, not one that can be brought into line with the other states’ arrangements right away.
The fact that Ayyangar made it plain that we could set up an interim system right now is an unavoidable conclusion. One such attempt is Art 306A.[xix] Any presidential order issued under Article 370, according to the CAD, must be confirmed by the Constituent Assembly.
As a result, when the constituent assembly was dissolved, no more presidential orders could be issued. According to a rigorous interpretation of the constituent assembly deliberations, any presidential orders issued after 1954 are null and void. Kashmir’s constituent assembly was meant to have sole power over the state’s relationship with the Union.
In 1959 first decision on 370 came by Prem Nath Kaul v. State of J&K[xx] where The constitutionality of the Jammu and Kashmir Big Landed Estates Abolition Act, 1950 (“Act”) was challenged on the grounds that the Maharaja, as a simple constitutional monarch, lacked the legal jurisdiction to promulgate the law.
The Article allows for interim solutions with respect to J&K, according to the judgement in two other places. Instead, it emphasises that some parts of the Article are only temporary: “the appropriate temporary provisions of Art. 370(1) are made conditional on the said Constituent Assembly’s ultimate approval on the said areas.”
Puranlal Lakhanpal v The President of India[xxi] and Ors, filed shortly after Prem Nath Kaul, in 1961, brought the Article back into question. He challenged 1954 order that modified Art 81. Such a change to Article 81 was far too extreme, and it would be illegal under the conditions of Article 370, which only allowed for modest changes. The petition was rejected by the Supreme Court on the grounds that the Presidential powers under Art. 370(1) were to be read in the broadest extent feasible.
In the case of Sampat Prakash v. State of Jammu and Kashmir[xxii], the Supreme Court noted the essence of Art.370. that article 370 will remain in place and will only be repealed if the president issues a directive to that effect based on the recommendations of the state’s Constituent Assembly. In the current situation, the state’s Constituent Assembly has not made such a suggestion.
In Ashok Kumar v. State of J&K[xxiii] where a special write petition was filed. By virtue of the J&K Reservation Act, 2004, officer’s junior to the Petitioners are promoted ahead of them. Reservation in promotion specified in Art 16 (4A) is an ultra-virus as it wasn’t applied by president’s order. The Court went on to say that clause (3) of the Article is the sole method by which the Article may be made to stop working.
Despite the title of the Article indicating that it is a transitory provision, the court found that because the CA of J&K did not activate the mechanism under clause (3), it has gained permanent validity inside the Constitution.
In the case of State Bank of India vs. Santosh Gupta,[xxiv] the Supreme Court went into great detail about the nature of the special status and reaffirmed that Jammu and Kashmir had a unique status in the Union of India for historical reasons, and that Art.370, which was intended to be transitional or temporary, has become a permanent feature of the constitution for the reasons stated in Art.370(3) of the constitution, which states that without the recommendation of the conclave, the special status
The Delhi High Court separated Article 370 from Article 369 in Kumarivijayalakshmi vs UOI,[xxv] stating that the temporariness in Article 369 arises from the time restriction of five years indicated in the article itself.
Art 370: A Basic Structure Doctrine?
Even though in case of Ashok Kumar they might use the word permanent once, the Supreme Court in an off-record hearing mentioned it to be permanent.[xxvi] The Supreme Court made this comment based on its judgement in SBI, stating that the provision’s ongoing presence in the Constitution has rendered it permanent, rendering its repeal impossible without meeting the requirement precedent in clause 3. Without any indication of the Article forming part of the Constitution’s fundamental structure, it’s difficult not to equate such permanence with anything other than the basic structure concept.[xxvii] The Supreme Court has previously used the term “permanent” to refer to anything becoming a permanent part of the Constitution’s basic structure. One can think that article is part of basic structure as higher law making body needs to intervene to abrogate it. [xxviii]
With the ruling in Kesavananda Bharati v State of Kerala[xxix], the fundamental structure concept became an intrinsic component of Indian constitutional law jurisprudence, placing an implied restriction on Parliament’s amending authority to destroy the Constitution’s character or integrity. Basic structure can be determined by case to case basis.[xxx]
One can wonder how a specific provision like Art 370 could be deemed part of the fundamental framework. One argument is that Art 370 is a crystallisation of the political agreement reached in respect to J&K, enshrining its unique position inside the Indian Union, and that repealing it would be tantamount to breaking the agreement. Art 370 serves as the glue that binds J&K to India by incorporating it into the Indian Union. As a result, it’s easy to see how the repeal of the Article would elicit basic structural issues.[xxxi]
While there is no one criteria for determining whether an enumerated characteristic is a part of the Constitution, it has been suggested that it must be recognised at an acceptable level of abstraction by relying on the Constitution’s language. Tools like the drafting history, the purpose of the framers, and so on may be valuable in this regard, notwithstanding their flaws.
In R. Ganpatrao v. UOI, the petitioner was a ruler of princely state and they decided to join India and give away their power by signing IoA and IoM. He was promised that he would be provided privy purses and certain other privileges. These were made under Art 291 and 362. But later on they were removed by 26th amendment act, 1971. It was challenge on the ground that it was a basic feature of constitution and hence cannot be removed. Thus it was somewhat similar to Art 370 as The Indian Union’s identity would have been different if it hadn’t been for the guarantee enshrined in Art 370, and its removal would jeopardise the fundamental structure.
The court however rejected it on the ground mainly that the accession was inevitable. According to them the lack of influence the provisions had on identifying the Constitution’s identity was the deciding factor in rejecting the fundamental structure argument.
Given that the Supreme Court of India has previously been hesitant to recognise historically contingent political arrangements as part of the fundamental structure, the question of what else can be included in the basic structure persists.
Although a definitive solution is still a long way off, it’s reasonable to assume that the “moral and political ideas at the normative heart of constitution” are part of the fundamental structure.[xxxii] While determining what comprises this normative core is a distinct investigation, ideals such as federalism, secularism, and others have already been recognised as part of this core.
Concept of Colourable Legislation:
The theory is founded on the principle that “what can’t be done directly cannot be done indirectly.” The doctrine was first articulated by the Supreme Court in the case of K.C.Gajpati vs. State of Orissa,[xxxiii] which stated, “The idea conveyed by the expression is that, although a legislature purportedly acted within the limits of its powers in passing a statute, it transgressed these powers in substance and in reality, the transgression being veiled by, what appears on proper examination, to be a mere omission.”
The president’s decree is an example of colourable legislation, as seen by the way in which the administration has repealed Art.370 without the permission of the Constituent Assembly. Using the Governor’s power to accede to a presidential order that changes the character of a state is nothing more than a perversion of our constitutional scheme’s democratic process. If we accept the government’s argument that Art.370 should be repealed, it implies that the people will be controlled by executive orders rather than legislation passed by the legislature. The author respectfully expresses his judgement that this is constitutional fraud.
In Light of Article 370, What Is the Nature of Indian Federalism?
India is not a traditional federal state in the sense that it treats its component entities equally and ensures that they are not treated unequally and hence unjustly in regard to one another.[xxxiv] The state of Jammu and Kashmir has experienced this, demonstrating the asymmetrical nature of Indian federalism.[xxxv] As a result, the Indian constitution allows the Union to treat certain states differently than others.
In the past, political science or the scholar who coined the term asymmetrical federalism gave it a negative connotation, focusing on its secession potential[xxxvi], but more recently, other scholars have given it a positive connotation, considering politics that subscribe to this concept as those that, in order to hold together their great diversity in one democratic system, had to embed special cultural and historical prerogatives for some of the members.[xxxvii]
In the case of Government of NCT of Delhi v Union of India,[xxxviii] the Supreme Court stated that the federal balance of legislative and executive authorities is a basic aspect of India’s federalism. As in the case of Art 370, asymmetrical agreements might be argued to be classic examples of federal power balance.
Given the foregoing, it’s unclear if Parliament can use its amending powers to repeal Article 370. Greater crucially, without the advice of the J&K CA, neither the Abrogation Orders nor the Jammu and Kashmir Re-organization Act, 2019 may remove the asymmetrical structure, as will be detailed in more detail later.
Aside from the content restrictions outlined above, the clause also imposes a number of procedural restrictions on the Constitution’s amending powers, which are outlined below, and failing to follow them throws doubt on the legality of such an exercise.
Conclusion:
Article 370’s unlawful repeal and the rearrangement of Jammu and Kashmir jeopardise India’s democratic and federal ideals, which were meticulously laid out in 1947. Although many scholars agree that the government’s actions were unconstitutional, which suggests that they will be reversed, the government’s blatant disregard for popular consent and statehood is typical of a central government that is becoming increasingly bold in its accumulation of power and has little regard for constitutional restraints.
In the near future, this case will very certainly be heard by the Supreme Court, where enormous concerns regarding constituent power, federalism, and India’s destiny will most likely be determined. Meanwhile, the people of Kashmir continue to be traumatised by widespread violence, with no mechanism for them to have their opinions heard in the world’s greatest democracy.
[i] “Kashmir Special Status Explained: What Are Articles 370 and 35A?,” Al Jazeera (Al Jazeera And News Agencies) https://www.aljazeera.com/news/2019/08/kashmir-special-status-explained-articles-370-35a-190805054643431.html
[ii] 2 Wali Ahmed, ‘Article 370 is Back in Focus, Courtesy Jitendra Singh’ The Indian Express https://indianexpress. com/article/india/politics/article-370-back-in-focus-courtesy-jitendra-singh/>
[iii] Louise Tillin, The fragility of India’s federalism https://www.thehindu.com/opinion/lead/the-fragility-of-indias-federalism/article28872165.ece
[iv] Ashwini Kumar Upadhyay v Union of India and Another
[v] 7 Ministry of Home Affairs, ‘Parliament Approves Resolution to Repeal Article 370; Paves Way to Truly Integrate J&K with Indian Union’ (Press Information Bureau, 6 August 2019)
[vi] Manohar Lal Sharma v Union of India, WP
[vii] Karuna Vikram, The Abrogation of Article 370 and the Fate of Kashmir: Can States Stop Being States
https://www.culawreview.org/journal/the-abrogation-of-article-370-and-the-fate-of-kashmir-can-states-stop-being-states
[viii] ‘Either Article 370 will Exist, or J&K won’t be Part of India, Omar Abdullah Tweets’ The Times of India (27 May 2014)
[ix] Indian Independence Act
[x]Prem Nath Kaul v The State of Jammu and Kashmir
[xi] Art 306 A, Constitution of India
[xii] Article 370, Constitution of India
[xiii] A.G Noorani, Art 370, A constitunal history of Jammu and Kashmir
[xiv] A.G Noorani, Art 370, A constitunal history of Jammu and Kashmir
[xv] Art 370, Constitution of India
[xvi] A.G Noorani, Art 264, A constitunal history of Jammu and Kashmir
[xvii] A.G Noorani, Art 14, A constitunal history of Jammu and Kashmir
[xviii] Jyoti Bhushan Das Gupta, Jammu and Kashmir (Martinus Nijhoff 1968)
[xix] Art 306, Draft article
[xx] 1959 AIR 749, 1959 SCR Supl. (2) 270
[xxi] 1961 AIR 1519, 1962 SCR (1) 688
[xxii] 1969 AIR 1153, 1969 SCR (3) 574
[xxiii] 2003 (II) SLJ 490
[xxiv] (2017) 2 SCC 538
[xxv] W.P.(C) 9300/2015
[xxvi] Ashok Kumar and Ors. v State of J&K and Ors. 2015 SCC Online J&K 210 (‘Ashok Kumar’); Dhananjay Mahapatra, ‘Article 370 has Acquired Permanent Status: Supreme Court’ The Times of India (4 April 2018)
[xxvii] A.G Noorani, A constitunal history of Jammu and Kashmir
[xxviii] Raghunathrao Ganpatrao v Union of India AIR 1993 SC 1267
[xxix] Raghunathrao Ganpatrao v Union of India AIR 1993 SC 1267
[xxx] Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford Scholarship Online 2012)
[xxxi] DP Satish, ‘Abrogation of Article 370 a Very Complex Affair, Say Legal Experts’ News18 (28 May 2014)
[xxxii] Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford Scholarship Online 2012)
[xxxiii] AIR 1953, Ori 185
[xxxiv] Arun K Thiruvengadam, The Constitution of India, A Contextual Analysis P.NO- 89
[xxxv] Art 371, constitution of India
[xxxvi] Charles Tarlton,’ Symmetry and Asymmetry as Elements of federalism: A Theoretical Speculation(1965)27(4) Journal of Politics 861-74
[xxxvii] Alfred Stepan, Juan Linz, and Yogendra Yadav, Crafting State Nations ( Baltimore, MD, John Hopkins, University Press,2015)
[xxxviii] Government of NCT of Delhi v Union of India & Anr., Civil Appeal No 2357 of 2017