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Article 370: A Controversial Constitutional Provision in Indian History

On 11 December 2023, five senior-most judges of the Supreme Court upheld the Union government's action to abrogate Article 370, which granted special status to Jammu and Kashmir (J&K). The Court further refused to comment on the constitutionality of the reorganization of J&K state into two Union Territories: Jammu and Kashmir and Ladakh.

Chief Justice D.Y. Chandrachud on behalf of himself, Justices B.R. Gavai and Surya Kant, wrote 352 pages of the 476 page judgement. Justice S.K. Kaul wrote 121 pages and Justice Sanjiv Khanna wrote a concurring judgement of three pages.

Historical Background
Hari Singh, the Maharaja of Jammu and Kashmir, signed the Instrument of Accession in 1947, which is where Article 370 had its start. This document preserved a large amount of the state's autonomy while enabling it to join the recently established Union of India. The provision of autonomy over internal affairs, with the exception of defence, communications, and international affairs, was a temporary measure outlined in Article 370, which was bestowed upon Jammu and Kashmir.

Constitutional Framework

To represent the special circumstances surrounding Jammu and Kashmir's admission into the Union, Article 370 was added to the Indian Constitution. With regard to topics not covered by the Instrument of Accession, the clause limited the Indian Parliament's authority and permitted the state to have its own constitution and flag. Although the state was granted more authority to implement certain of the Indian Constitution's provisions through a number of Presidential Orders throughout the years, the state's unique identity was mostly preserved.

Controversies and Criticisms
Although Article 370 was once intended to be a transitional and temporary measure, it has now become a divisive topic. Critics contended that Jammu and Kashmir's unique status exacerbated separatist sentiments and impeded the state's integration with the rest of India. The clause also resulted in Jammu and Kashmir having different laws, which divided the Indian Union's legal and administrative systems.

As talks about the prejudice that some groups in the state experience gathered traction, the dispute grew more intense. Critics cited the gender-based discrimination coming from Article 35A, a clause that was adopted in 1954 by a Presidential Order and gave Jammu and Kashmir citizens unique rights and advantages. This clause has drawn criticism for upholding inequalities and violating the goals of a unified civil code.

The Abrogation of Article 370

August 2019, when the Indian government, led by Prime Minister Narendra Modi, made the historic decision to revoke Jammu and Kashmir's special status, marked a turning point in the history of Article 370. The move, according to the administration, is necessary for the region's socioeconomic growth and for completely integrating it into the national economy.

Alongside the repeal of Article 370, the state was divided into Jammu & Kashmir and Ladakh, two Union Territories. Reactions to this judgement were conflicting on a national and worldwide level. Supporters praised the government's audacious decision as a step towards national unification, but others questioned whether it was constitutionally appropriate to take such action and worried about its possible effects on the region's stability.

Impact and Aftermath
The political and legal climate in Jammu and Kashmir has changed significantly as a result of Article 370's repeal. The area saw the abolition of its independent constitution and flag, and is now directly managed by the national government. When Jammu and Kashmir joined the Indian Union, national laws and policies were applied there as well, bringing the area into compliance with the national framework.

But the action also raised security issues and heightened tensions, prompting the implementation of limitations, communication outages, and the deployment of more troops in the area. With some voicing worries about the possible effects on bilateral ties and regional stability, the international community kept a careful eye on the events.

Supreme Court

The Chief Justice of India, Dr. DY Chandrachud, along with Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, JJ., made up the five-judge Constitution Bench. The bench unanimously upheld the Union's action to revoke Article 370 of the Constitution and ordered the State to be restored to its original statehood as soon as possible. Three judgements were rendered: Justices Kaul and Khanna wrote separate but concurring judgements, while Dr. DY Chandrachud, CJI, wrote one on behalf of himself, BR Gavai, and Surya Kant, JJ.

Constitutional Order 272 and 273?

During the duration of a proclamation under Article 356(1)(b), the President issued Constitutional Orders ('CO') 272 and 273, which abolished Article 370 and applied the Indian Constitution to the State of Jammu with Kashmir. Article 356 of the Constitution was suggested in a report that was sent to the President on November 21, 2018, the day the Governor dissolved the State's Legislative Assembly in accordance with Section 53(2) of the State Constitution.

The President proclaimed the State to be under President's rule on December 19, 2018, in accordance with Article 356. Subsequently, on August 5, 2019, the President issued CO 272, the Constitution (Application to Jammu and Kashmir) Order 2019, which superseded all previous Constitution Orders and applied all of the provisions of the Indian Constitution.

This included the modification of Article 367(4) and the application of the term "Constituent Assembly" to the State in the proviso of Article 370(3), which had previously applied to the Legislative Assembly. The Parliament took on the role of the State's legislative as well. Subsequently, the Lok Sabha approved and the Rajya Sabha enacted the Jammu and Kashmir Reorganisation Bill 2019 under the proviso to Article 3.

With the passage of the Jammu and Kashmir (Reorganisation) Act, 2019 (the "Reorganisation Act"), Parliament divided the state into two Union Territories: Ladakh, which lacks a legislature, and Jammu and Kashmir, which allowed for the state's reogranization. The President issued CO 273 on August 6, 2019, in accordance with the advice of the Lok Sabha, in accordance with Article 370(3) of the Constitution, as revised by CO 272, which made Article 370 no longer applicable to the State.

With the assent of the President, the Union Ministry of Home Affairs, exercising the authority granted by Section 2(a) of the Reorganisation Act, issued a notification on August 9, 2019, putting the provisions of the Act into force. Thus, Article 370 of the Constitution-which gave the State a distinctive position for governing-was essentially revoked.


No sovereignty existed in the State of Jammu and Kashmir

As the Court pointed out, Maharaja Hari Singh created the State's Legislative Assembly, or "Praja Sabha," and gave it some legislative authority, but he nonetheless maintained control over all legislative, executive, and judicial affairs. This, according to the Court, demonstrated the State's internal autonomy. Jammu and Kashmir was one of the Princely States that became independent after India gained its freedom since they had not ratified the Instrument of Accession (IoA).

The Court also pointed up this fact. Thus, the king, Maharaja Hari Singh, had the ultimate authority over the State. In the immediate aftermath, the Court observed that on October 26, 1947, the Maharaja signed the Instrument of Absorption, so assuming full control over the aforementioned State.

Upon reviewing a note from the Ministry of States concerning the special status granted to certain Indian states, the Court found that it made clear that Jammu and Kashmir's accession would continue on the pre-existing basis until it was possible to bring the state up to par with other states.

Until then, the state would be considered a part of Indian territory until Parliament enacted legislation extending the reach of the Constitution to Kashmir. Accordingly, the Court held that the unique provision for Jammu and Kashmir did not represent a component of sovereignty, but rather was necessary at the time due to the State's circumstances and was meant to last until the State could be placed on par with other States.

The Proclamation, which Yuvraj Karan Singh issued on November 25, 1949, indicated that the Constitution would regulate the State-Union of India relationship after it was adopted by the Constituent Assembly, the Court further stated. The Court so declared that the Proclamation represented Jammu and Kashmir's complete and total ceding of sovereignty to India - to her sovereign people - via its sovereign ruler. The State's Constitution blatantly lacks any mention of sovereignty, the Court said after comparing the Preambles of the two documents.

The court further cited SBI v. Santosh Gupta, (2017) 2 SCC 538, whereby it was decided that permanent residents were not dual nationals of the Union of India and the State of Jammu and Kashmir. They actually only hold citizenship in the Union of India, which is a single sovereign entity. After reviewing Article 1 of the Constitution, which states that India is a Union of States, and Article 370(1)(c), which restates that Article 1 will be applicable to the State, the Court concluded that the combination of the State with the Union of India was an unequivocal fact.

Constitutional validity of the Proclamations issued under Article 356 of the Constitution and Section 92 of the Constitution of Jammu and Kashmir

The Court observed that shortly after the Jammu and Kashmir Proclamation issued under Article 92 of the Constitution came to an end on December 19, 2023, the President issued a Proclamation under Article 356 of the Constitution on the same day, and the Parliament further extended the Presidential rule for an additional six months.

The Court further observed that no challenge was brought to the Proclamations under Article 92 until after their terms had expired, and that no challenge was filed to the Proclamations under Article 356 right away. Following the President's issuing of CO 272 and 273, complaints were made against the Governor's and President's proclamations as well as both the CO.

The Presidential authority granted by Article 356 to make a Proclamation, according to the Court, is extraordinary and has significant implications for both the overall federal structure and the State's sovereignty. The Proclamations made under Article 356 of the Constitution and Section 92 of the Constitution of Jammu and Kashmir cannot be constitutionally challenged on the grounds of laches, the Court further stated.

But the Court felt that the current challenges to the legality of the aforementioned Proclamations were untenable since the main issues raised in the writ petitions were the repeal of Article 370 and the acts made while the President was in office, not separately to President's rule by itself. The petitioners had challenged the Proclamations, but the Court ruled that no remedy could be given to them because the Presidential Proclamation had been repealed on October 31, 2019.

Article 370- A temporary Provision

The Court held that there were two reasons why Article 370 was introduced: first, it was intended to serve as a transitional measure, providing for a temporary solution in light of the unique circumstances resulting from the State's ongoing war, until the State's Constituent Assembly was established and able to decide on the Union's legislative authority over matters not specifically listed in the Instrument of Accession and ratify the Constitution.

The Court identified that the provision's marginal note refers to "temporary provisions with respect to the State of Jammu and Kashmir," using wording found in Part XXI of the Constitution, which deals with transitional and temporary provisions. Thus, the Court determined that an interpretation of Article 370's wording would likewise suggest that it is a provision that is only meant to be transitory.

The Challenge to CO 272 and 273

Article 370(3) allows the President to proclaim that "this article" will no longer be in effect or will only continue to be in effect with the exclusions and adjustments that he specifies, as the Court pointed out. The Court clarified that the proviso to Article 370 stipulates that the recommendation of the State's Constituent Assembly must be obtained before the President may take action under this authority, and that the President may exercise this authority by publishing a public statement.

The Court observed that the CO 272 was issued in accordance with Article 370(1)(d) and that its Paragraph 2 applies the whole text of the Indian Constitution to the State, 'modifying' Article 367 by means of the newly inserted subclause (d) of the inserted clause (4). As to the Court's ruling, the phrase "Constituent Assembly of the State referred to in clause (2)" in the proviso of Article 370(3) will henceforth be interpreted as the "Legislative Assembly of the State."

The Court relied on the ruling in Mohd. Maqbool Damnoo v. State of Jammu and Kashmir, (1972) 1 SCC 536, to establish that the Union and the State must work together to exercise the power under Article 370(1)(b) and (d). The Court further stated that the power cannot be used if the President obtains his own consent while using it. In this instance, however, the Court determined that the President's request for the Union Government's approval rather than the State Government's in order to issue CO 272 was lawful.

This is because, according to Article 370(3), the President is empowered to unilaterally declare the abolition of Article 370, and the cooperation and consultation between the two entities will only be required in situations where the State Constitution would need to be amended in order to apply the provisions of the Indian Constitution to the State.

The Court further clarified that the idea of cooperation and consultation was not necessary to be adhered to since Jammu and Kashmir would be affected by the application of all Constitutional provisions through the exercise of power under Article 370(3) that Article 370 is no longer in effect is equivalent to using Article 370(1)(d).

As a result, the Court determined that the President's acquisition of the Union of India's consent on behalf of the State Government did not constitute mala fide because it was not necessary for the State Government to concur in order to exercise the power under Article 370(1)(d) to apply all of the Constitution to the State. The Court also declared that the intent behind a legal provision is just as significant as its wording.

The Court clarified that although at first glance the change proposed by Paragraph 2 of CO 272 may seem to be a "modification" or amendment of Article 367, in reality, it amends Article 370 itself. Although it refers to Article 370 as an amendment, it actually amends Article 367.

The Court concluded that allowing modifications through a convoluted process would have terrible consequences, citing many experts on the subject. Therefore, the Court declared that changes cannot be implemented by avoiding a process that has been established specifically for that reason.

Whether the exercise of power under Article 370(3) in issuing CO 273 was justified?

The Court clarified that the President possessed the authority to issue a notification stating that Article 370(3) is no longer applicable without the recommendation of the Constituent Assembly. The President's continuous exercise of power under Article 370(1) suggests that the process of gradual constitutional integration is still in progress.

As a legitimate use of authority, the President's proclamation made in accordance with Article 370(3) represents the conclusion of the integration process. As a result, the Court determined that the President had legitimately used his authority by issuing CO 273.

Validity of the Reorganisation Act: On Substantive Grounds

The State of Jammu and Kashmir would regain its statehood, the Centre has assured the Court, and its current position as a Union territory is only temporary. The Court further remarked that the restoration of statehood to Jammu and Kashmir will not impact the status of the Union Territory of Ladakh.

The Court concluded that it was unnecessary to ascertain whether Article 3 permitted the State of Jammu and Kashmir's restructuring into the Union Territories of Ladakh and Jammu and Kashmir. As per Article 3(a) read in conjunction with Explanation I, which allows for the formation of Union Territories by the separation of territory from any State, the Court decided that Ladakh's position as a Union Territory was upheld.

The Court expressed worry about the security situation in the area and ruled that direct elections to the Legislative Assemblies, one of the most important aspects of India's representative democracy, could not be postponed until statehood is restored. Consequently, by September 30, 2024, the Court ordered the Election Commission of India to take action in order to hold elections for the Legislative Assembly of Jammu and Kashmir, which was established in accordance with Section 14 of the Reorganisation Act.

On Procedural GroundsThe Court declared that after it was determined that CO 272 was lawful, all of the Constitution's provisions applied to the State and that any exceptions or changes to those sections that applied to Jammu and Kashmir were no longer relevant.

With the help of a timeline, the Court clarified that the President issued CO 272 on August 5, 2019, and that same day, the Reorganisation Bill was sent to the Rajya Sabha and Lok Sabha to solicit their opinions regarding the first proviso to Article 3. The Rajya Sabha then passed the Reorganisation Act, and the Lok Sabha passed it the following day.

The Court therefore held that CO 272 rendered the second proviso of Article 3 as it related to the State of Jammu and Kashmir null and void at the time the Reorganisation Bill was presented. As a result, the Court determined that the question of whether Article 356(1)(c)'s ability to suspend the second proviso was still valid was no longer relevant.

In his concurring opinion, Justice Sanjay Kishan Kaul unanimously concluded that Article 370 of the Constitution was a transitional measure intended to be temporary rather than a permanent characteristic of sovereignty.

With his own unique justification, Justice Sanjiv Khanna agreed with the two rulings. According to him, turning a state into a union territory has serious ramifications, including violating federalism and depriving the people of the state of an elected state government. Justice Khanna stated that strict adherence to Article 3 of the Constitution and the provision of extremely compelling justification are required for the conversion or formation of a Union Territory from a State.

Once seen as a representation of the precarious balance between autonomy and integration, Article 370 has had a lasting impact on Indian history. The relationship between the federal government and Jammu and Kashmir underwent a paradigm shift as a result of its abrogation, which signaled a dramatic break from the status quo. The legacy of Article 370 remains a topic of controversy as the area navigates the possibilities and problems that occur post-abrogation, reflecting the intricate dynamics of Indian constitutionalism and regional politics.

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