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The Special Status provided to Jammu & Kashmir (hereinafter referred to as J&K) has always been an Achilles Heel for imposition of Indian Constitution to the State. Article 370 was the manifestation of the desire of the Ruler and the State Government to restrict control of Union over the State Affairs. The Article has been deemed by many to have a temporary lifespan and several debates have regularly surfaced regarding ceasing its operation. The bold step taken by the present government has again sparked furore in the nation with people divided in their opinion about the legitimacy of the move. The present Article aims to critically analyse the procedural consistency of the entire event which concluded with the abrogation of the Article.

  1. HISTORY OF THE STATE

Under the British Regime, Jammu & Kashmir was ruled by a hereditary Maharaja. In 1925 Maharaja Pratap Singh was succeeded by Maharaja Hari Singh as the next Ruler of J&K. Pursuant to enforcement of Indian Independence Act of 1947 the Rulers of the Indian States became competent to choose and accede to either of the newly created Indian and Pakistan Dominions in exercise of their sovereignty. However, Maharaja Hari Singh had not executed any such Instrument of Accession in favour of either India or Pakistan. Even though the Maharaja was not forced to join India, Pakistan resorted to use of brutal force.

The end of the month of October, 1947 beginning with October 22, 1947 witnessed serious aggression in Kashmir committed by the tribal raiders or Pathan Tribesmen (Azad Kashmir Forces) devised by Pakistan Army and headed by Akbar Khan, a Senior Pakistan Army officer. On 24th October 1947, an urgent appeal was made by Maharaja Hari Singh to the Indian Government for absolving the state from invaders and waited for a response. Meanwhile the Cabinet’s committee for defense met in Delhi in which it was decided on 25th October 1947 that V. P. Menon, who was the administrative head and also the Secretary to the States department, shall personally visit Srinagar.

On 26th October 1947, the Government decided to fly two companies of troops to Srinagar. Menon himself flew to Jammu wherein the Maharaja had taken refuge and he carried a message for Maharaja that in order to ward off the invasion, he had to join the Indian Union. Maharaja was ready to accede and the instrument was signed by him on 26th October 1947. Menon came back to Delhi on 27th October 1947 carrying both, the letter as well as Instrument of Accession. The Cabinet’s committee on defense accepted the accession with a condition that a referendum would be held in J&K after normalization of the law and order situation in the State. Sheikh Abdullah headed the emergency administration in Kashmir while former Kashmir PM, N Gopalswamy Ayyangar was appointed by Nehru as a Cabinet Minister for managing Kashmir affairs. Ayyangar’s contribution was instrumental in framing of Article 370[1].

  1. APPLICATION OF UNION CONSTITUTION TO J&K UNTIL 2018

The State of J&K represented by their Ruler acceded to the demands of Union of India subject to the terms and conditions appearing in the Instrument which stipulated that: 

  • The Indian Dominion was empowered to make laws only for the subjects appearing in the schedule of the Instrument (Defense, External Affairs, Communication and Ancillary).
  • The terms were not subject to amendment unless accepted by the Ruler.
  • The Dominion was not allowed to forcefully acquire land in the State.
  • The State was not obliged to accept any future Constitution adopted by India.
  • Ruler’s sovereignty, powers and privileges and continuity of laws passed were not affected by Instrument.
  • The term Ruler to include heirs of the present Ruler[2]

An interim government with ministers headed by a Prime Minister functioning as a Cabinet was established in J&K. Sheikh Abdullah who became head of administration in 1949 negotiated the nature and extent of State’s political relationship with the Union, which led to conferring special status on J&K through the formulation of Article 370. The special status and exceptions in applicability of Indian Constitution were honored in the form of Article 370, Delhi Agreement, 1952 and later with Article 35A. However along with Article 370, Article 1 was also made applicable to the State, thus making the State, a territory and inseparable part of Indian Union. The State Constitution also confirms this arrangement as it does not denote the State as a sovereign. The status allowed J&K to draft its own constitution and design its separate flag.

Yuvraj Karan Singh inherited the throne from Maharaja Hari Singh by a proclamation dated 20th June 1949. A proclamation was issued by Yuvraj Karan Singh on 25th November 1949 declaring that Indian Constitution which the Union had decided to adopt on 26th January 1950 shall govern the constitutional relationship between J&K and the Indian Union and shall be enforced in the State not only by him but also his heirs and successors. It was followed by the Constitution (Application to Jammu & Kashmir) Order, 1950, issued on January 26, 1950, which provided that apart from the provisions of Art. 1 and Art. 370 of the Constitution the only other provisions applicable to J&K shall be those as are specified in the Second Schedule annexed to the Order and shall be subject to such exceptions and modifications enumerated in the said schedule.

The next proclamation dated 20th April 1951 directed for enacting a State Constitution and formation of Constituent Assembly in the State consisting of representatives elected by adult franchise. The said directions were given effect by the Constitution (Application to Jammu & Kashmir) Second Amendment Order, 1952 dated 15th November 1952. By the said order which was issued in accordance with Article 370 (3), the hereditary rule of the Ruler was decided to be abolished and instead a Constitutional Head who was to be an elected representative known as Sadar-i-Riyasat was created. Therefrom, in its application to J&K, references in Article 370 to the term Government of the State shall mean the person recognised by the President at the said time and recommended by State Legislative Assembly, as the Sadar-i-Riyasat of Jammu & Kashmir who shall act on the advice of the Council of Ministers of the State in force for the time being.[3]

By the Constitution (Application to Jammu & Kashmir) Order, 1954, Articles 31 A and 31 B were made applicable to the State. Further an additional clause was added to Article 367 for substituting the terms Government of State to Sadar-i-Riyasat. It also inserted Article 35 A in the Constitution of India as was applicable to the State.

The Constitution of J&K was adopted by the State on 17th November 1956. Elections for Legislative Assembly were held in 1957 and Karan Singh was elected as Sadar-i-Riyasat for a second term on 6th November, 1957. By another amendment to Order of 1954 dated 24th November 1965 another clause was inserted to Article 367 which stated that post 10th April 1965 references to the term Sadar-i-Riyasat of Jammu and Kashmir shall mean Governor of Jammu and Kashmir and further stated that references to the term Government of State shall mean Governor of Jammu and Kashmir acting on advice of Council of Ministers.[4]

The applicability of Indian Constitution to J&K has always been subject to the Schedule appended to the Instrument and provisions of Article 370. It was confirmed that apart from the items appearing in Schedule of Instrument and the items of list annexed to Indian Constitution made applicable by Order of 1954 which was amended time and again, the residuary powers to conduct affairs of the State shall rest with the State. By another amendment to the Order of 1954, the entire Indian Constitution as in force on 20th June, 1964 along with future amendments was made applicable to the State in addition to Articles 1 and 370. However, the applicability was subject to exceptions and modifications enumerated in Clause 2 of the said order.[5] It includes applicability of President’s powers under Articles 352 and 356.

  1. UNDERSTANDING ARTICLE 370

Article 370 stipulates that the Union Parliament is free to enact laws for J&K with respect to matters falling under Union and Concurrent list of Indian Constitution provided such matters are declared by President of India vide an order in consultation with State Government to correspond to items enumerated in Schedule appended to Instrument of Accession. In case of enactment in regards to any matters other than the matters enumerated above, the President may pass an order subject to concurrence of State Government.

The Article further states that only Articles 1 and 370 of the Constitution are wholly applicable to the State. The other provisions shall be applicable subject to modifications and exceptions as President may specify through an order and shall be further divided into matters corresponding to those appearing in Instrument of Accession for which consultation of State Government is essential and matters apart from those appearing in Instrument of Accession for which concurrence of State Government is mandatory.

The Article fetters the powers of Indian Parliament and President by stipulating that continuity of enacted laws and applicability of provisions of Indian Constitution which received concurrence of State Government prior to convening the Constituent Assembly shall be subject to decision of the Constituent Assembly of J&K.

Lastly the Article provides that the President by issuing a notification in public may cause operation of Article 370 to cease or to continue its operation with exceptions and modifications, subject to recommendation by the State Constituent Assembly.

Even though Article 370 mandates recommendation of Constituent Assembly to enforce clause 3, neither the said Article, nor any provision in the Constitution of India or State or of any other document provides a solution or alternative in case the Constituent Assembly ceases to exist.

Further Article 370 needs to be read in consonance with the interpretation provided in Article 367, in its application to J&K, wherein the State Government is the person recognized by President as Governor and who is, recommended by the State Legislative Assembly and acting on advice of Council of Ministers.

  1. EVENTS PAVING THE WAY TO ABROGATION OF 370

There is a considerably long chain of events which has led to one of the biggest and historical events in India whereby the Special Status accrued to J&K was revoked on the 6th August 2019. Important dates can be summarized is as under:

  • 1st March 2015 à PDP and BJP form alliance in state with Mufti Mohammad Syed as CM,
  • 7th January 2016 à Demise of Mufti Mohammad Syed,
  • 4th April 2016 à Mehbooba Mufti gains support of BJP, becomes 1st woman CM of State,
  • 8th July 2016 à Burhan Wani, commander of Hizbul Mujahidin killed by security forces,
  • Violence erupts in valley protesting execution, 80 people killed in clashes, BJP demanded stern action against protestors, Mehbooba Mufti desired leniency,
  • Mehbooba Mufti supports agitation against Kathua gang rape incidence and action of security forces in valley,
  • Centre led by BJP agrees to PDP and locals’ demand for ceasefire in month of Ramzan,
  • 17th May 2018 à Ceasefire announced,
  • Pakistan did not reciprocate to ceasefire leading to BJP facing nationwide criticism,
  • 18th June 2019 à Killing of journalist Shujaat Bukhari,
  • 19th June 2019 à BJP ends coalition with PDP, the State suffered a political crisis as Mehbooba Mufti-led coalition government turned into minority due to withdrawal of BJP’s support.[6]

Congress and Omar Abdullah led National Conference refused to form an alliance with PDP and hence PDP was unable to form a majority in the Legislative Assembly. Hence the then Governor N. N. Vohra recommended imposition of Governor’s rule as per the provisions of Article 92 of the J&K Constitution. With the CM resigning on 19th June 2018 and none of the Political Parties being interested to form Government in the State, the Governor of J&K, vide proclamation P-1/18 of 2018 dated 20th June 2018 assumed all the functions and powers of State Government due to failure of Constitutional machinery.

The State Assembly was suspended since the issue of aforesaid proclamation and later even though the PDP, NC and Congress decided to form a grand alliance on 21st November 2018, the successor Governor of J&K, Satya Pal Malik, by his order dated 21st November 2018 dissolved the State Legislative Assembly in exercise of the powers vested in him under Article 53 (2) (b) of the J&K Constitution.

The provisions of Article 92(3) of the J&K Constitution limit the operation of Governor’s rule for a period of 6 months, further as no elections were held in State, the Governor recommended to the President and Central Government imposition of President’s rule in the State as per the provisions of Article 356 of the Indian Constitution. Accordingly, the President on 19th December 2018 issued a proclamation imposing President’s rule in the State. By this Proclamation the President assumed all powers of Governor of State and was at a disposal to act through the Governor. Further, any reference in State Constitution or Indian Constitution to Governor shall mean President and any reference to State Legislature or the Houses shall mean Parliament and reference to any laws made by Legislature of State shall mean laws made by Parliament.[7]

During the continuance of the President’s rule the country underwent Lok Sabha Elections after which the BJP Government was re-elected in the country. As per Article 356 (4), the President’s Rule ceases to operate after expiry of 6 months from the date of its issue, unless its operation is extended for a further period of 6 months by a resolution, approving extension of such Proclamation, passed by both Houses of Parliament. Accordingly, a resolution was passed approving the extension of President’s Rule in Jammu and Kashmir for another six months effective from July 3, 2019.

The month of August 2019 witnessed various restraints in the State summarized as under:

  • 2nd August 2019 à Amarnath Yatra cancelled citing terror threat, tourists sent back paramilitary deployed[8],
  • Machail Mata Yatra suspended, Border Action Team claimed to kill 5 to 7 Pakistan Army Men[9],
  • Outstation students asked to move out of the Valley[10],
  • 4th August 2019 à Omar Abdullah, Mehbooba Mufti and Sajad Lone placed under House Arrest,
  • Section 144 imposed banning public meetings, gatherings. Educational Institutions shut, telephone and internet service restricted[11].

On 5th August 2019 the President issued The Constitution (Application to Jammu And Kashmir) Order, 2019 under Article 370(1) of the Indian Constitution. It superseded the Order of 1954 and made entire Indian Constitution as amended till the said date applicable to J&K with exceptions and modifications provided in the said Order. These exceptions and modifications provided that references in Article 367 to Indian Constitution shall mean Constitution as made applicable by the present Order; references in Article 367 to the terms Sadar-i-Riyasat of Jammu and Kashmir shall mean Governor of Jammu and Kashmir; references in Article 367 to Government of Jammu and Kashmir shall mean Governor of Jammu and Kashmir; references in Article 370 (3) to Constituent Assembly of the State shall mean Legislative Assembly of State.[12]

That words “with the concurrence of the Government of State of Jammu and Kashmir” appearing in the said Order of 2019 need to be read along with 1954 Order and imposition of President’s rule wherein the powers of State Government were vested in the Governor of J&K and hence concurrence of Governor was held equivalent to concurrence of State Government, thereby ensuring compliance with the mandate of Article 370 (1). Further the Order amended the term Constituent Assembly in clause 3 of Article 370 to Legislative Assembly. This amendment needs to be read with the Presidential proclamation of 19th December 2018 which provides that any reference in the Constitution and the J&K Constitution to the State Legislature or the Houses shall, with respect to the functions and powers thereof, shall mean, unless otherwise provided, as a reference to Parliament. Therefore, now a recommendation to the President for ceasing the operation of Article 370 or continue its operation subject to exceptions and modifications can be given by the Parliament of India and not Constituent Assembly/Legislative Assembly of the State.

Accordingly, on 5th August 2019 the Home Minister moved a resolution in Council of States which recommended to the President, in accordance with provisions under Article 370(3), that all clauses of Article 370 shall cease to operate except a newly inserted clause (1). The new clause stated that all provisions of Indian Constitution along with its amendments,  shall be applicable to the State without any modifications or exceptions and notwithstanding the content of Articles 152 and 308 or of any other Article of Indian Constitution or of Constitution of J&K or of any law, document, judgment, instrument, territory or agreement under Article 363 suggesting contrarily.[13]

Further the resolution for accepting the Jammu and Kashmir Reorganization Bill, 2019 was put before the Council of States. Both the resolutions were adopted in the Council of States. Both the motions were placed before the House of the People on 6th August 2019 and the motion for ceasing operation of Article 370 was adopted with Ayes 374 and Noes 78. Also, the motion for Jammu and Kashmir Reorganisation Bill, 2019 was adopted with Ayes 377 and Noes 77[14]. After the resolution was passed in both the Houses of the Indian Parliament, the mandatory requirement of recommendation under Article 370 (3) was fulfilled and a notification was issued to cease the operation of Article 370 on 6th August 2019 by the President.[15]

  • CRITICAL ANALYSIS OF THE PROCEDURE ADOPTED

The application of the provision under Article 370(1) under the Indian Constitution enabling any reference to the term State Government to henceforth mean as Governor and to Constituent Assembly as Legislative Assembly could not be prima facie considered as arbitrary. The Supreme Court has discussed the ambit of the clause and has provided that the term ‘modify’ not only means ‘to limit’ or ‘restrict’ but also means ‘to extend’ or ‘enlarge’ and hence the President, who is empowered to make modifications to Constitutional provisions when applying them to J&K under the said clause, may even vary or amend them to the extent of being considered as radical transformations.[16]

However what needs to be deciphered is the intention of the Union Government in replacing the words ‘Constituent Assembly’ with ‘Legislative Assembly’ even though it was fully aware of the fact that neither the State Legislature existed at that moment nor was it going to be convened in near future.

Further, the move causing abrogation of the special status of J&K and ceasing operation of Article 370 needs to subjected to a litmus test of the political activities in the state since June 2018. It began with the withdrawal of support leading to fall of State Government, followed by imposition of Governor’s Rule and dissolution of State Assembly by denying permission to make a coalition government. This followed by imposition of President’s Rule during which the powers of Government were assumed by President and those of the State Legislature by Parliament.

Owing to abovementioned political situation, the Constitution (Application to Jammu And Kashmir) Order, 2019 doesn’t seem to comply in true letter and spirit with the Constitution. The Order states that it is in “concurrence with the Government of State of Jammu and Kashmir” where reference to Government of State meant the Governor. Even though the current Governor of State (Satya Pal Malik), appointed on 21st August 2018, was recognized by the President, but was not recommended by the State Legislative Assembly as mandated by the amended 1954 Order as well as Article 367 as applicable to the State. He was transferred to J&K from Bihar during the suspension of the State Legislative Assembly as ordered by previous Governor N N Vohra whose term of six years was due to end on 25th June 2018. The President’s rule was imposed on report of Satya Pal Malik after which Parliament assumed functions of State Legislature.

Further it needs to borne in mind that the Governor when giving such Concurrence was not acting on the advice of Council of Ministers as after the resignation of Mehbooba Mufti, the Assembly was initially suspended and later dissolved by denying the permission to form a government in coalition.

The Union Government, the Parliament and the President did not attempt to conduct an election in the State and instead, by virtue of the powers derived from existing and amended statutes, decided to invoke provisions of Article 370(3). The said Article is not only substantive but also establishes a legal procedure to invoke its provisions. It mandates a recommendation from Constituent Assembly (after amendment Legislative Assembly) to cease operation of Article 370. The primary objective behind such a condition is to honour the arrangement between Indian Dominion and Ruler of the State made during signing of the Instrument of Accession and more importantly to take a decision which is inclusive of the opinion of the people of the State voiced through their elected representatives. The recent decision was exactly contrary to the Constitutional Scheme as the State Legislative Assembly was dissolved, the local leaders were under house arrest and the communication in and out of the State as well as right of local people to assemble and protest in J&K were suspended. The recommendation was made to the President by Parliament in which the number of representatives from J&K was negligible as compared to the total strength of Members of Parliament thereby defeating the purpose of the mandate.

The Union Government and the Parliament seem to have used a loophole in the Constitution with respect to absence of an alternative procedure in the Indian Constitution, State Constitution and the Instrument of Accession, which shall be followed with respect to invoking provisions under Article 370(3) when the State Assembly is not in existence. Lastly it was regularly imposed and debated that the Article 370 is temporary in nature and its time that it be scrapped. The observations of Supreme Court regarding the nature of the Article 370 very clearly provide that even though the marginal notes of the said Article suggest it’s operation to be temporary, yet unlike Article 369, it does not mention any time limit for its continuance post which it shall cease to operate. The Apex Court unambiguously states that sub-clause 3 provides that the Article shall cease to operate only after a notification in public is issued by the President thereby declaring the same, however, such step cannot be taken without a recommendation from the State Constituent Assembly. The Supreme Court has further quoted the ratio in Sampat Prakash wherein it was reiterated that operation of Article 370 shall cease only after a recommendation is made by State Constituent Assembly and contrarily the said Assembly recommended continuance of the operation of the said Article with a single modification substituting the terms ‘Maharaja of Jammu & Kashmir’ with ‘Sadar-i- Riyasat of Jammu & Kashmir’. Further clause 2 of Article 370 does not suggest that operation of the said Article shall cease on dissolution or completion of work of the Constituent Assembly and hence in light of the above factors the said Article has use even in current times and shall continue to operate subject to the happening of the event in clause 3.[17]

  • CONCLUSION

It is evident that even though the procedure used in ceasing operation of Article 370 and consequently revoking the special status conferred on the State of Jammu Kashmir may appear superficially in accordance with the Constitutional provisions, it cannot be considered as compliance of the said provisions in their true letter and spirit. The pith and substance of the said Article was ignored which mandated voice of the local population of the state to be heard. The Union Government should have opted to convene elections and constitute a State Assembly which may have recommended the alteration of the operation of the said Article. Alternatively, the Union Government may have attempted to instil confidence in the local population and conduct free and fair plebiscite. The present move is a display of unchecked power and example of how further governments having considerable majority in the Parliament can impose their decisions on sections of the country having circumstances, social set up and ideologies different from either the majority or from those in power under the pretext of public good, nationalist sentiment etc.

[1] The Four Eventful Days That Decide The Fate Of Kashmir, The Economic Times, (06/08/2019), available at https://economictimes.indiatimes.com/news/politics-and-nation/the-four-eventful-days-that-decided-the-fate-of-kashmir/back-to-the-past/slideshow/70555212.cms, last seen on 29/09/2019 at 12:21.

[2] Instrument of Accession of Jammu and Kashmir, available at http://jklaw.nic.in/instrument_of_accession_of_jammu_and_kashmir_state.pdf, last seen on 10/03/2019 at 16:13.

[3] Prem Nath Kaul v. The State of Jammu & Kashmir, AIR 1959 SC 749.

[4] Mohd. Maqbool Damnoo v. State of Jammu and Kashmir, AIR 1972 SC 963.

[5] Cl. 2, Constitution (Application to Jammu & Kashmir) Order, 1954.

[6] After Mufti Experiment, Over To Army, Times of India (20/06/2019), available at https://timesofindia.indiatimes.com/india/after-mehbooba-mufti-experiment-over-to-army/Articleshow/64655465.cms, last seen on 29/09/2019 at 14:32.

[7] G.S.R. 1233(E) Notification, (19/12/2018), available at http://egazette.nic.in/(S(vcd2pssh2klei3x4byncziep))/Digital.aspx, last seen on 29/09/2019 at 12:32.

[8] Bharti Jain, Kashmir on edge as admin calls off Amarnath yatra due to terror threat, The Times of India (03/08/2019), available at https://timesofindia.indiatimes.com/india/kashmir-on-edge-as-admin-calls-off-amarnath-yatra-due-to-terror-threat/Articleshow/70505984.cms, last seen on 29/09/2019 at 12:34.

[9] Indian Army foils Pak infiltration attempt, kills 7, The Times of India (04/08/2019), available at https://timesofindia.indiatimes.com/india/indian-army-foils-attack-by-paks-bat-along-loc-kills-at-least-five/Articleshow/70515360.cms, last seen on 29/09/2019 at 12:34.

[10] Jammu & Kashmir tense as troops arrive, outstation students asked to leave Valley, The Times of India (04/08/2019), available at https://timesofindia.indiatimes.com/india/jk-tense-as-troops-arrive-outstation-students-asked-to-leave-valley/Articleshow/70517610.cms, last seen on 29/09/2019 at 12:35.

[11] Saleem Pandit & Bharti Jain, Omar, Mehbooba, Sajad placed under house arrest at midnight, The Times of India (05/08/2019), available at https://timesofindia.indiatimes.com/india/jk-omar-abdulah-mehbooba-mufti-sajad-lone-placed-under-house-arrest-at-midnight/Articleshow/70527884.cms, last seen on 29/09/2019 at 12:35.

[12] G.S.R. 551(E), THE CONSTITUTION (APPLICATION TO JAMMU AND KASHMIR) ORDER, 2019 C.O. 272 (05/08/2019), available at http://egazette.nic.in/WriteReadData/2019/210049.pdf, last seen on 29/09/2019 at 12:40.

[13] Rajya Sabha, Parliamentary Bulletin, Part I, Two Hundred and Forty Ninth Session (05/08/2019), available at http://164.100.47.5/Bullitensessions/sessionno/249/050819.pdf last seen on 29/09/2019 at 12:41.

[14] Lok Sabha, Bulletin – Part I, No. 37 (06/08/2019), available at  http://loksabhaph.nic.in/Business/UserBulletin1.aspx, last seen on 20/09/2019 at 12:41.

[15] Notification, G.S.R. 562(E), DECLARATION UNDER ARTICLE 370(3) OF THE CONSTITUTION “C.O.273” (06/08/2019), available http://egazette.nic.in/(S(mttqctgw1hahytt5p5kqkpii))/Digital.aspx, last seen on 29/09/2019 at 12:41.

[16] Puranlal Lakhanpal v. The President of India and Ors., AIR 1961 SC 1519.

[17] State Bank of India v. Santosh Gupta and Ors., AIR 2017 SC 25.

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