On 11th December 2023, in its landmark decision Supreme Court upheld the abrogation of Article 370 in the case of In re: Article 370 of the constitution (2023). Article 370 of the Constitution of India incorporated special arrangements for the governance of the State of Jammu and Kashmir. The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b).
These orders have the effect of applying the entire Constitution of India to the State of Jammu and Kashmir and abrogating Article 370. Contemporaneously, Parliament enacted the Jammu and Kashmir Reorganisation Act 2019 which bifurcated the State into two Union territories.
Submissions of the Union of India
- The process of constitutional integration of Jammu and Kashmir bears all the resemblance with the process of constitutional integration of various territories of India, namely democratization combined with merger of small states, formation of union of states, the idea of having constituent assemblies for framing constitutions, etc. There was no distinct or special compact between Union of India and Jammu and Kashmir as far as the constitutional integration process was concerned.
- It was open to the President to take a final stock of the exercise of the authority under Article 370(1)(d), and to decide as to whether there is a need of updating exercise at all, or there is a need for any other invocation of Article 370(1)(d). This power of the President is not limited or conditioned by any practice in relation to Article 370 in the past.
- Article 370 was conceived and designed to aid the constitutional integration process on the same lines as it happened with other states. Its continued exercise over a period cannot be seen as a cloud over or distortion of its original purpose.
- Border States are a distinct class of territories and their reorganisation under Article 3 ought to receive distinct consideration. Neither asymmetrical federalism nor any other federal features have been infringed. No rights in relation to representative democracy have been taken away. Article 370 is the only provision in the Constitution which the Constitution itself declares to be “temporary”. This understanding that it is temporary is furthered from the drafting history of the article, debates in the Constituent Assembly Parliamentary debates, the gradual issuance of constitution orders.
- The other provisions of the Part XXI are named either “special provisions” or “transitory provisions”. The effect of Article 370(1) was to permit two organs under the Constitution of India, by way of an Executive Order, to create, amend or destroy, any part/provision of the Constitution of India [except Article 1] at their free will and apply such tailored constitutional provisions to the State of Jammu and Kashmir. The expansive width of this power shows it could not have been intended to be a permanent provision – either by efflux of time or in any other manner.
- The impact of Article 370 was to be deprive the residents of Jammu, Kashmir and Laddakh from being treated at par with their fellow citizens in the rest of India. Article 370 deprived them of several fundamental and statutory rights without any legislative or parliamentary process. Such a consequence would obviously be known to the framers of the Constitution and therefore, the framers could have never intended for it to be a permanent provision.
- The abrogation of Article 370 brings the residents of Jammu and Kashmir at par with the citizens residing in the rest of the country, confers them with all rights flowing from the entire Constitution as well as hundreds of beneficial legislations. Therefore, applying the Constitution of India to the State can never be an “arbitrary act”.
- This is the only provision in the Constitution where the application of (i) the provisions of the Indian Constitution; and (ii) the application of beneficial legislations to the residents of Jammu and Kashmir, is made dependent upon the Government of the day agreeing to the application. Such an arrangement could never have been conceived by the framers of the Constitution.
- Article 370 is the only provision which provides for a mechanism (by way of Article 370(3)) by which it would cease to be in existence. A provision intended to be permanent would not have such an “inbuilt extinguishing clause”. The proviso to Article 370(3) was to remain in operation only during subsistence of the Constituent Assembly of Jammu and Kashmir because:
a. When the Jammu and Kashmir Constituent Assembly was formed, Article 370 of the Constitution of India was already in existence. Being aware of Article 370(3) the Constituent Assembly of Jammu and Kashmir could have, at the time of its dissolution –
i. Recommended to the President not to exercise his powers under Article 370(3);
ii. Recommended some exceptions and modification with which Article 370 could have remained in force;
iii. Recommended the deletion of sub-clause (3) and consequently sub-clause (2), making Article 370(1) permanent;
iv. It could have changed the marginal note substituting the word “temporary” with “permanent” and “Constituent Assembly” with “Legislative Assembly” in Article 370(3);
v. Recommended the deletion of Article 370(1)(d), freezing the relationship between the State and the Union as it existed when the Constitution [Application to Jammu and Kashmir] Order, 1954 was passed by CO 48 by the President of India; and
vi. Despite these powers of recommendation being available and despite being conscious of the availability of the power, the Constituent Assembly chose not to do any of this and was dissolved.
b. Once the State Constituent Assembly ceased to exist, the proviso to Article 370(3) itself ceases to exist and the President becomes the sole repository of powers under Article 370(3). He has a duty to exercise this power in the interests of the residents of the State even in the absence of a recommendation.
- The petitioners’ assertion that the decision to abrogate Article 370 was taken purely by executive feat is incorrect. The process followed clearly reflects the PART C participation of the entire nation through their chosen representatives both in the Lok Sabha and the Rajya Sabha If the President cannot exercise the powers under Article 370(3), it would mean that the existence and exercise of power of the President of India provided for in the Indian Constitution is dependent upon a decision or a lack of it by a body outside the Constitution of India.
- If the mere absence of the Constituent Assembly mentioned in the proviso to clause 3 of Article 370 is treated as rendering the power of the President of India nugatory and redundant, it would mean that under Article 370(1)(b) and 370(1)(d), any provision of the Constitution of India can be amended and applied to the State of Jammu and Kashmir.
- Even the provisions which are part of the basic structure of the Constitution can be modified and applied to Jammu and Kashmir or even stultified and eradicated in its application to Jammu and Kashmir – as has happened in the past. This interpretation would amount to placing Article 370 above even the basic structure of the Constitution of India.
- Even if the State Constituent Assembly was currently in existence, the limited role envisaged for it was to merely make a “recommendation”. Such a recommendation was not binding upon the President. Considering the limited role that the State Constituent Assembly was to play, its replacement with the “Legislative Assembly” and the recommendation by Parliament in place of the State Legislative Assembly passes muster. Parliament is not an undemocratic body and along with the Council of States, it represents federal aspirations.
- Parliament is the repository of the democratic will of the entire nation and in a situation which concerns the relationship of one federal unit with other federal units, the apt constitutional authority to exercise democratic powers as per the Constitution would be Parliament. The question concerns all States in the federal setup and not merely Jammu and Kashmir.
- The power of the President under sub-clause (3) of Article 370 is unfettered because
(a) Article 370 begins with a non-obstante clause “notwithstanding anything contained in the Constitution of India”; and
(b) Sub-clause (3) of Article 370 begins with a non-obstante clause “notwithstanding anything in the foregoing provisions of this Article”.
The exercise of powers by the President is, thus, not controlled either by any constitutional provisions including the provisions of Article 370.
Replacement of the term “Constituent Assembly” with “Legislative Assembly”
- The replacement of the term “Constituent Assembly” with “Legislative Assembly” was necessary to democratize the decision-making process of the President. Parliament had to exercise the powers of the Legislative Assembly because:
a. Of the Emergency under Article 356(1)(b);
b. Considering the strategic significance of the State from the point of view of the sovereignty and integrity of nation, it is desirable that every federal unit should, through its representatives, both at the Lok Sabha and at the Rajya Sabha, participate in the decision-making process; and
c. The Constituent Assembly of India was exercising constituent power while the Constituent Assembly of Jammu and Kashmir was exercising “legislative” power Clause (3) of Article 370 is an extraordinary, unique and unprecedented clause.
A provision in the nature of Article 370(3) is not present in any constitutional document or any provision of the Indian Constitution. It is not possible to classify the power under clause (3) under a specific nomenclature. The power under clause (3) of Article 370 is a plenary Presidential power, specially designed for a “temporary” provision.
- The position as far as the State of Jammu and Kashmir is concerned, even prior to the coming in to force of Article 1 and the Constitution of India, was:
a. By the IoA (Instrument of Accession), the ruler surrendered his authority; and
b. By the proclamation dated 25 November 1949, the ruler surrendered his absolute power in regard to the affairs of the State.
- The Constituent Assembly of Jammu and Kashmir was formed by a ruler who himself had surrendered his sovereignty. The document called the Constitution of Jammu and Kashmir and the body framed for its creation cannot claim any equivalence with the Constitution of India and the Constituent Assembly of India. This is because the Constituent Assembly of Jammu and Kashmir and the resultant Constitution of Jammu and Kashmir:
a. Were formed in 1951 by the Proclamation of the Maharaja who had already acceded to India;
b. Were formed after the Constitution of India already included the State of Jammu and Kashmir under the Schedule to Article 1 thereby making it a part of India, devoid of any sovereignty;
c. Were not framed in their classical sense as documents for a new nation or for providing an independent model of governance. It was only a legislative enactment for the internal governance of the State and subject to the Constitution of India; and d. Had a limited mandate and could not have overridden the provisions of the Indian Constitution qua Jammu and Kashmir.
- The State Constitution does not establish a republican form of government in its entirety as it was dependent on the real sovereign document i.e., the Constitution of India. The Indian Constitution clearly establishes the Union of India as a sovereign democratic republic. The State Constitution neither establishes sovereignty nor does it claim to do so. The Preamble is indicative of this fact.
- To become a fundamental document, a Constitution must necessarily include several facets of undisputed sovereignty including the power to acquire new territory [which, in itself include power to “cede” its own territory]. This is absent in the State Constitution as it was already a part of the Indian Constitution under Article 1. The power of President under Article 370(3) necessarily pre-supposes the repeal of every document which is required to be repealed to ensure that the entire Constitution of India is made applicable to Jammu and Kashmir without any hinderance or legal hurdle. This power necessarily inheres in the President of India under Article 370(3).
- There can only be one supreme document known as the Constitution flowing from the power conferred by the people of India. All other enactments [whether known as a constitution or otherwise] are subordinate to the Constitution of India and the body creating such other documents is also subordinate to the Constitution of India.
- Article 367 has previously been utilised to modify Article 370. This is a legitimate route to modify Article 370. When the Reorganisation Act was enacted, the second proviso to Article 3 (which applied to the State of Jammu and Kashmir alone) was not in force. This is because CO 272 issued by the President made the entire Constitution applicable to the State in supersession of any previous Constitutional Orders.
- As a result, all the ‘modifications’ of the Constitution were superseded and only the first proviso was in force. Hence, there was no requirement to comply with the second proviso. The power of Parliament under Article 3 is a plenary power which may be exercised during the subsistence of a proclamation under Article 356. States have previously been reorganised during the subsistence of a State Emergency. Under Article 3, Parliament has the power to convert a State into two Union territories.
- The sufficiency of the material which necessitated a decision under Article 3 lies beyond the realm of judicial review. The petitioners did not challenge the dissolution of the Legislative Assembly and the issuance of the Proclamation declaring an Emergency under Article 356. They only challenged the actions taken during the subsistence of the Proclamation. It is impermissible for this Court to read in limitations on the powers under Article 356(1)(b). The President has previously exercised powers under Article 370 even when Governor’s rule or President’s rule was in force.
- The term “modification” used in Article 370(1) cannot be interpreted in a narrow manner. It gives the President the power to amend the Constitution in its application to the State of Jammu and Kashmir. Therefore, the addition of clause (4) to Article 367 by CO 272 is valid. The continuity of constituent power having been exercised by the legislative assembly of the State of Jammu and Kashmir by virtue of Section 147 of the State Constitution, the legislative assembly is equally competent to provide the requisite recommendation under Article 370(3).
- The erstwhile States ceased to be independent with the advent of the Constitution. In fact, every vestige of their sovereignty was abandoned with the execution of the Instruments of Accession and the States stood fully assimilated and integrated with the Dominion of India. Article 370(3) contains a non-obstante clause, overriding Article 370(1) and (2), providing for the cessation of Article 370 itself when the conditions are right.
- Article 35-A, introduced through CO 48 of 1954, seeks to provide special rights to permanent residents of Jammu and Kashmir. It affects several fundamental rights, impacting the basic structure of the Constitution. However, it goes beyond the scope of “exceptions and modifications” under Article 370(1)(d). The constitutional scheme under Section 6 of the Constitution of J & K is in flagrant violation of the constitutional scheme under Articles 14 and 15(1) of the Constitution of India.
- The non-obstante clause under Article 370 must give way to the non- obstante clause of Article 368 of the Constitution. The provisions of the Jammu and Kashmir Constitution create a number of problems, particularly in regard to the right to hold property, right to citizenship, and right to settlement. The actions of the Union of India are in conformity with the intention of the framers of the Constitution and the understanding of Article 370 as expressed by the representatives from the State of Jammu and Kashmir.
- The views of the Legislative Assembly of the State are required to be obtained only when a new State is formulated and not in case of formation of new Union Territories. All the powers of the Constituent Assembly of the State of Jammu and Kashmir were being exercised by legislature of State. Therefore, by necessary implication, the word ‘Constituent Assembly’ in Article 370(3) should have been construed as ‘Legislative Assembly.’
- This interpretation was given statutory form by virtue of CO 272. Article 370 is not a part of the basic structure of the Constitution of India. Article 35A is in violation of fundamental rights of the citizens of other parts of the country.
Re: article 370 of the constitution, 2023