Abrogation of Article 370: A Review of Recent Supreme Court Judgment

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Introduction

At the time of independence, the Crown state of Jammu and Kashmir stood as one of India's largest princely states. It garnered attention in recent times for fortnight-long proceedings in the Supreme Court related to the abrogation of Article 370 of the Indian Constitution. Article 370 of the Constitution of India has been a significant and controversial provision that granted special provisions to Jammu and Kashmir. The government of India abrogated the special status granted to J&K under Article 370 of the Indian Constitution on August 06, 2019. It also resulted in the reorganization of the state by bifurcating it into two separate Union Territories: Jammu and Kashmir, and Ladakh. Against this decision of the government, various petitions were filed. The Supreme Court of India heard the arguments and contentions of the advocates appearing for both parties and delivered the judgment “In Re: Article 370 of the Constitution” on December 11, 2023. Before delving into the judgment delivered by the top Court, let us understand the historical background of Article 370 of the Constitution of India.

Historical Background

The history of Article 370 dates back to the period when India was gaining independence from British colonial rule in 1947. During the partition of India, the princely states were given the option to accede either to India or Pakistan based on their geographical location and the religious composition of their population. Initially, Jammu and Kashmir chose to remain independent with Muslim-majority and Hindu ruler, Maharaja Hari Singh. However, in October 1947, armed tribesmen from Pakistan invaded Jammu and Kashmir, prompting the ruler to seek military assistance from India. India agreed to provide military support on the condition that Jammu and Kashmir would accede to India. The same was formalized through the signing of the Instrument of Accession by Maharaja Hari Singh, and the Indian military forces were deployed to defend the state against the invaders. Further in 1949, the Indian Constituent Assembly drafted the Constitution of India, and Article 370 was incorporated as a temporary provision in Part XXI, which deals with temporary, transitional, and special provisions. Article 370 granted a special status to Jammu and Kashmir, providing it with a considerable degree of autonomy over its internal affairs. 

In 1954, the Constitution (Application to Jammu and Kashmir) Order was issued, which extended several provisions of the Indian Constitution to Jammu and Kashmir leading to the gradual erosion of the state's autonomy. Various presidential orders were subsequently issued to extend more provisions of the Indian Constitution to Jammu and Kashmir. In August 2019, the Government of India, under the leadership of Prime Minister Narendra Modi, made a significant decision regarding Article 370. The government abrogated the special status of Jammu and Kashmir by revoking Article 370 through a presidential order. The same was passed by the then-President of India, Ram Nath Kovind. Additionally, the state was bifurcated into two Union Territories: Jammu and Kashmir, and Ladakh. The revocation of Article 370 and the reorganization of the state triggered mixed reactions and sparked debates across the country. Since then, it has been a matter of concern. In association with this, petitions were filed challenging the Centre Government’s 2019 decision. Recently, the Supreme Court of India delivered a judgment on the matter which has been discussed in this article.

Recent Supreme Court Judgment on Abrogation of Article 370

On December 11, 2023, the Constitution bench of the Supreme Court consisting of Chief Justice of India DY Chandrachud, Justice Surya Kant, Justice Sanjiv Khanna, Justice Sanjay Kishan Kaul, and Justice BR Gavai delivered the verdict on the batch of petitions against the 2019 decision of the Central Government abrogating Article 370 of the Indian Constitution resulting in the revocation of special status granted to Jammu & Kashmir. The hearing for the same commenced on August 02, 2023, and arguments of all the counsels were heard by the bench for 16 days. On September 05, 2023, the Supreme Court bench reserved the judgment which was then delivered on December 11. 

Advocates who appeared for the petitioners

Senior Advocate Gopal Sankaranarayanan, SA Kapil Sibal, SA Prashanto Chandra Sen, SA Sanjay Parikh, SA Nitya Ramakrishnan, SA Menaka Guruswamy, SA Zaffar Shah, SA Gopal Subramanium, SA Rajeev Dhavan, SA Chander Uday Singh, SA Dushyant Dave, SA Dinesh Dwivedi, SA Shekhar Naphade, and Advocate Warisha Farasat.

Advocates who appeared for the Union of India

Attorney General of India R Venkataramani, Additional Solicitor General KM Nataraj, Solicitor General Tushar Mehta, ASG Vikramjeet, and Advocate Kanu Aggarwal.

What were the questions raised before the Constitution bench?

The Constitution bench answered various questions related to the nature of Article 370, the validity of the Jammu and Kashmir Reorganization Act, the constitutional validity of amendment of Article 367, and the abrogation of Article 370 that surfaced during the Supreme Court proceedings that lasted for 16 days. Following are the issues/ questions addressed by the Supreme Court while hearing the matter:

1. “Whether the provisions of Article 370 were temporary in nature or whether they acquired a status of permanence in the Constitution; 
2. Whether the amendment to Article 367 in the exercise of the power under Article 370(1)(d) so as to substitute the reference to the “Constituent Assembly of the State referred to in clause (3) of Article 370 by the words “Legislative Assembly of the State” is constitutionally valid;
3. Whether the entire Constitution of India could have been applied to the State of Jammu and Kashmir in the exercise of the power under Article 370(1)(d);
4. Whether the abrogation of Article 370 by the President in the exercise of the power under Article 370(3) is constitutionally invalid in the absence of a recommendation of the Constituent Assembly of the State of Jammu and Kashmir as mandated by the proviso to clause (3);
5. Whether the proclamation of the Governor dated 20 June 2018 in the exercise of the power conferred by Section 92 of the Constitution of Jammu and Kashmir and the subsequent exercise of power on 21 November 2018, under Section 53(2) of the Constitution of Jammu and Kashmir to dissolve the Legislative Assembly are constitutionally valid;
6. Whether the Proclamation which was issued by the President under Article 356 of the Constitution on 19 December 2018 and the subsequent extensions are constitutionally valid;
7. Whether the Jammu and Kashmir Reorganisation Act 2019 by which the State of Jammu and Kashmir was bifurcated into two Union Territories (Union Territory of Jammu and Kashmir and Union Territory of Ladakh) is constitutionally valid.”

Judgment and verdict of the Supreme Court

The Constitution bench delivered the three judgments running into 476 pages. One judgment was by the CJI for himself, Justice Gavai, and Justice Kant. The second judgment was a concurring opinion authored by learned Justice Kaul. The third judgment was by Justice Sanjiv Khanna who concurred with the CJI’s and Justice Kaul’s judgment. The overall decision of the Supreme Court is illustrated below:

• “The State of Jammu and Kashmir lost any element of sovereignty following the execution of the Instrument of Accession (IoA) and the adoption of the Constitution of India. Article 370 represented asymmetric federalism, not sovereignty.
• The petitioners' challenge to the Proclamations under Section 92 of the Jammu and Kashmir Constitution and Article 356 of the Indian Constitution lacks merit, as the primary challenge pertains to actions taken post-Proclamation.
• Judicial review applies to the exercise of power by the President after an Article 356 Proclamation. The challenge requires a prima facie showing of mala fide or extraneous exercise of power, with the burden shifting to the Union to justify such exercise.
• The power of Parliament under Article 356(1)(b) to assume the powers of the State Legislature is not limited to law-making power, and any interpretation excluding non-law-making power is contrary to the text of the Article.
• Article 370, placed in Part XXI of the Constitution, is deemed a temporary provision based on its historical context.
• The power under Article 370(3) persisted after the dissolution of the Constituent Assembly of Jammu and Kashmir, except for the transitional power in the proviso to Article 370(3), which ceased to exist.
• Article 370 cannot be amended by exercising power under Article 370(1)(d). The amendment in Paragraph 2 of CO 272, modifying Article 370 through Article 367, is deemed ultra vires Article 370(1)(d) because it bypasses the prescribed amendment procedure. An interpretation clause cannot be used to circumvent the mandated amendment process.”

While delivering the judgment, Justice Kaul differed on the question of sovereignty. He held that in the decision Prem Nath Kaul vs. Union of India, the Supreme Court held that J&K had retained some part of its sovereignty. He further said Article 370 recognized J&K’s internal sovereignty by recognizing the constituent assembly of the state. Justice Khanna conquered with Justice Kaul on this point. Moreover, Justice Khanna, while pronouncing the judgment remarked that the judgment of the CJI “is scholarly and it elaborately annotates the complex legal issues”. He also elaborated that Justice Kaul’s judgment ‘pragmatically demystifies the factual and legal position’. He further iterated that “Both judgments are in seriatim and uniformly agree that Article 370 of the Constitution of India was a feature of asymmetric federalism and not sovereignty.” 

In the emotional epilogue written by Justice Sanjay Kishan Kaul, he reflects on the historical and social burden carried by the Valley of Kashmir, emphasizing the profound impact on its people. He states, "During my travels home over the years, I have observed the social fabric waning and the consequences of intergenerational trauma on an already fractured society." Justice Sanjay Kishan Kaul advocates for a truth and reconciliation commission in Jammu & Kashmir, drawing inspiration from global models like South Africa. He emphasizes the urgent need for a collective understanding of human rights violations, proposing an impartial commission to investigate violations dating back to the 1980s. Stressing reconciliation as the primary goal, he recommends a time-bound set up by the government, aligning the concept with transformative constitutionalism. The commission cautioned against resembling a criminal court, and should adopt a humanized process, fostering inclusiveness and forgiveness based on the principles of "ubuntu."