By K.M. Seethi
The Supreme Court verdict affirming the abrogation of Jammu and Kashmir’s special status under Article 370 has sparked significant debates on the core tenets of India’s constitutional democracy and federalism. While a political victory for the BJP, the verdict’s potential ramifications on Centre-State relations, especially under diverse political dispensations, have emerged as a topic of concern. The Court’s assertion that Parliament, during the President’s Rule, holds the authority to enact irreversible legislation on behalf of the State legislature raises critical questions about constitutional fundamentals and poses a potential challenge to federal principles.
However, the Supreme Court has left open the question of whether Parliament, through the powers under Article 3, can eliminate statehood by converting a State into one or more Union Territories. This is a serious question. The Court emphasized that in an appropriate case, it should examine the scope of powers under Article 3 considering the impact on autonomy, historical context, federalism, and representative democracy. Is the court still waiting for an appropriate case? Is the question of J&K not worthy of consideration? The judgment, however, clarified that the views of the State Legislature under the first proviso to Article 3 are ‘recommendatory’ and not binding on Parliament.
Chief Justice of India D.Y. Chandrachud, who headed a five-member constitional bench, stated that not every decision by the Union government during Presidential rule can be challenged, as it could lead to the administration of the state coming to a standstill. Meanwhile, the reorganization of Ladakh as a Union Territory was upheld, with the court relying on the solicitor general’s promise of restoring statehood to J&K.
The court’s decision also raised questions about the potential erosion of statehood without a functioning state assembly, impacting India’s federal structure. The directive for the Election Commission of India to hold elections by September 30, 2024, is significant, allowing the postponement of polls beyond the general election in spring next year.
The judgment by Justice Chandrachud, Justice B R Gavai, and Justice Surya Kant affirmed that the concurrence of the State Government was not necessary for the President to exercise power under Article 370(1)(d) to apply all provisions of the Constitution to Jammu and Kashmir. The exercise of power by the President under Article 370(1)(d) to issue CO 272 is deemed not mala fide, and it is considered valid to the extent that it applies all provisions of the Constitution of India to the State of Jammu and Kashmir.
The court noted that the President had issued Constitution Orders over forty times, in the past, under Article 370(1)(d), applying various provisions of the Constitution with modifications, indicating a constitutional integration of the State with the Union over seventy years. The judgment analysed the provisions of the Constitution of India and Jammu and Kashmir, concluding that the latter is subordinate to the former. After the abrogation of Article 370, the Constitution of the State becomes inoperative. With the application of the entire Constitution of India to Jammu and Kashmir, the Constitution of the State loses its purpose and functionality.
The court pointed out that after the Instrument of Accession (IoA) and the Proclamation of 25 November 1949 adopting the Constitution of India, the State of Jammu and Kashmir lost any element of sovereignty. However, Article 370 reflected “asymmetric federalism,” not sovereignty.
The judges said that the petitioners did not challenge Proclamations under Section 92 of the Jammu and Kashmir Constitution and Article 356 of the Indian Constitution until the abrogation of Jammu and Kashmir’s special status. The challenge to Proclamations is not considered due to the principal challenge being post-abrogation actions. They unanimously, agreed that the President’s power under Article 370(1)(d) to issue CO 272 is not mala fide. The President can unilaterally issue a notification declaring the cessation of Article 370 without securing concurrence. Hence, the exercise of power by the President under Article 370(1)(d) applying the entire Constitution to Jammu and Kashmir through CO 272 is valid.
The President’s declaration under Article 370(3) through CO 273, signifying the culmination of the process of constitutional integration, is valid, according to the court. Following the application of the Constitution of India through CO 273, the Constitution of the State of Jammu and Kashmir is declared redundant, and the Constitution of India becomes supreme. Thus, Parliament’s exercise of power under the first proviso to Article 3, leading to the reorganization of Jammu and Kashmir into two Union Territories (Ladakh and Jammu and Kashmir), is declared valid and not mala fide.
The court noted that the Solicitor General assured the restoration of Jammu and Kashmir’s statehood (except for Ladakh). The Election Commission is directed by the court to conduct elections to the Legislative Assembly by 30 September 2024, and statehood restoration is urged at the earliest.
Context of Abrogating Article 370
The reorganization of the State of Jammu and Kashmir (J&K) in 2019 was a significant and controversial move by the Union Government. The decision to abrogate the ‘special status’ of J&K, accomplished through the Jammu and Kashmir Reorganization Act of 2019, sparked constitutional, political, and ethical debates. The state was bifurcated into two Union Territories – Ladakh and Jammu & Kashmir. Critics, including petitioners, argued that this action challenged India’s parliamentary practices, federal principles, and traditions of constitutional democracy in dealing with states.
The issue revolved around the interpretation and use of Article 3 of the Indian Constitution, which grants Parliament the power to alter state boundaries. The petitioners contended that the Union Government manipulated this article, bypassing the J&K State Legislative Assembly and diminishing the principles of federalism. The move was seen as a departure from India’s historical approach, as no state had been transformed into a Union Territory since the State Reorganization Act of 1956.
Article 370, which granted J&K autonomy, played a crucial role in the controversy. Originally conceived as a provisional measure, Article 370 allowed the President, in consultation with J&K authorities, to decide which provisions of the Indian Constitution would apply to the state. Over time, amendments reduced J&K’s autonomy. The government’s decision to revoke Article 370 without the consent of the J&K Constituent Assembly raised constitutional concerns.
The haste in implementing the reorganization, coupled with the sidelining of the J&K State Legislative Assembly, had raised questions about the Union Government’s adherence to constitutional principles. The political context, including the imposition of the President’s rule and the dissolution of the State Legislative Assembly, added complexity to the issue.
The Presidential notification issued on August 5, 2019, included an amendment to Article 367 of the Constitution, altering the interpretation of key terms concerning the state. This change allowed the Union Government to argue that, during President’s rule in J&K, Parliament could replace the State Legislative Assembly in providing recommendations, even if the Assembly was dissolved.
The amendment was seen as an indirect method to modify Article 370 without the consent of the State Assembly, challenging established legal norms and traditions. The Union Government claimed to have obtained the ‘concurrence’ of J&K’s government, but critics argued that, under President’s rule, this amounted to the consent of the Governor, effectively an agent of the Union Government.
The controversial move involved the introduction and swift passage of a bill for the reorganization of J&K in both houses of Parliament, receiving the President’s assent on August 9, 2019. The Jammu and Kashmir Reorganisation Act, 2019, came into effect on October 31, 2019, reconstituting the state into two Union Territories: Jammu and Kashmir, and Ladakh. The Act granted extensive powers to the Union Government to issue executive orders, modifying or repealing over 400 State and Union laws in relation to the Union Territories.
The legal validity of the J&K Reorganisation Act 2019 faced challenges through multiple petitions filed before the Supreme Court. Various individuals, including advocates, former judges, and public figures, sought the declaration of the Presidential Orders as unconstitutional. On August 28, 2019, the Supreme Court referred these petitions to a five-judge Constitution Bench for further examination.
The decision to strip Jammu and Kashmir (J&K) of its statehood in 2019 was seen in the context of the political objectives of the BJP-led NDA Government. The BJP cited national security reasons, emphasizing the need to curb terrorism in Kashmir, as the primary justification for the move. However, the decision was also influenced by the BJP’s frustration with power-sharing, with political forces in Srinagar from 2015 to 2018.
The BJP’s abrupt withdrawal from the coalition with the People’s Democratic Party (PDP) in 2018, leading to the resignation of J&K Chief Minister Mehbooba Mufti, marked a turning point. The BJP claimed the alliance had become unmanageable due to escalating violence. However, critics argued that the BJP’s decision was strategically timed, just months before the 2019 Lok Sabha elections, taking advantage of its popularity in Jammu while the PDP lost support in the Valley.
The deteriorating social and economic conditions in J&K during the PDP-BJP coalition, including the 2014 floods, demonetization, and the introduction of the Goods and Services Tax (GST), were also critical. These factors contributed to increasing violence, unemployment, and economic stagnation. The BJP’s withdrawal was presented as a response to the worsening law and order situation, deflecting attention from its own role in exacerbating the crisis.
The Kathua incident, a brutal rape and murder case, further strained the BJP-PDP coalition. The BJP’s handling of the situation led to public criticism from the PDP, and the incident significantly damaged BJP’s reputation, especially in the Jammu region.
There were also issues related to the militarization of the Valley, with the use of pellet guns causing injuries and loss of vision among civilians. The killing of militant leader Burhan Wani in 2016 triggered widespread protests, and met with a heavy-handed response from the Indian army. The UN Human Rights Report highlighted the involvement of a broader demographic in the protests, including young, middle-class Kashmiris. The J&K State Human Rights Commission noted several cases of human rights abuses. There were also reports of recurrent communications interruptions, attacks on schools by militants, and accusations of Pakistan supporting armed groups in the region. The United Nations (UN) Report mentioned the presence of militant groups in J&K, including Lashkar-e-Tayyiba, Jaish-e-Mohammed, Hizbul Mujahideen, and Harakat Ul-Mujahidin. These groups were believed to be based in Pakistan-administered Kashmir, and the report suggested that Pakistan’s military continued to support their operations across the Line of Control.
Thus, the controversial decision to revoke J&K’s special status occurred against this backdrop, with the government justifying the move on national security grounds. However, the decision was driven not only by security concerns but also by the BJP’s political agenda and frustration in power-sharing arrangements. The Union government’s decision to place J&K under Governor’s rule was seen as part of government’s increased control over the region’s politics. The events leading to the abrogation of Article 370 should be viewed in the context of the deteriorating socio-political conditions in J&K over decades.
There are criticisms from various quarters, including from J&K leaders that the apex Court’s decision to abstain from ruling on the constitutionality of reorganizing J&K into two Union Territories is a glaring example of judicial side-stepping. It raises questions as the Court opted not to address a fundamental question arising from the application of Article 3, marking the first instance of downgrading a State.
It may be recalled that Justice Sanjay Kishan Kaul in his epilogue of the judgement said that the Valley of Kashmir has a historical and social context, marked by conflict and victims of the invasion since 1947. The entry of the Army during troubled times impacted the region’s social fabric, and healing is crucial. Restoring coexistence, tolerance, and mutual respect is essential for the region’s future.
The judgment by Kaul emphasized the need for a collective understanding of human rights violations, both by State and non-state actors. A commonly accepted narrative or ‘truth’ is crucial for acknowledging the suffering and facilitating reconciliation. The recommendation is to set up an impartial truth and reconciliation commission to investigate and report on human rights violations in Jammu and Kashmir since the 1980s and recommend measures for reconciliation. He said that the Commission should be set up expediently and be time-bound. It aims to address the distrust among the youth and should be based on dialogue, allowing different viewpoints. While the Government should devise the setup, caution is advised to ensure it doesn’t become a criminal court but follows a humanized and personalized process. Justice Sanjay Kishan Kaul is learned to have drawn inspiration from South Africa’s Truth and Reconciliation Commission as a model for addressing human rights violations and fostering reconciliation.
Interestingly, the court asserted in one of its paragraphs that democracy and federalism are integral features of the Constitution. It emphasized the essential role of States in the constitutional project of democracy and federalism, recognizing India’s constitutional structure as quasi-federal, encompassing both unitary and federal elements. The court acknowledged the significance of States in maintaining a constitutional balance of power between the Union and State Governments. However, despite these affirmations in the judgment, the final verdict appears to contradict the very essence of federalism it purportedly champions.
India, Ministry of Law and Justice (2019a): The Constitution of India, New Delhi: Government of India.
India, Ministry of Law and Justice (2019b): “The Constitution (Application to Jammu and Kashmir) Order, 2019 C.O. 272, Notification Order, 5 August 2019,” The Gazette of India Extraordinary, https://egazette.nic.in/WriteReadData/2019/210049.pdf
India, Ministry of Law and Justice (2019c): “The Jammu and Kashmir Reorganisation Act, 2019, No. 34 of 2019, 9 August, The Gazette of India, https://egazette.nic.in/WriteReadData/2019/210407.pdf
Seethi, K.M. (1999): “A Tragedy of Betrayals: Questions beyond the LoC in Kashmir,” Economic and Political Weekly, 11 September: 2682-8, https://www.jstor.org/stable/4408402
Seethi, K.M. (2019): “Jammu and Kashmir in a Melting Pot: Constitutional Democracy under Siege,” Journal of Parliamentary Studies, https://ipaffairs.org/wp-content/uploads/2022/02/JOURNAL__combined_final-compressed-1.pdf
Seethi K.M. (2021): Enduring Dilemma: Flashpoints in Kashmir and India-Pakistan Relations, New Delhi: KW Publishers.
Sindhu, Jahnavi and Vikram Aditya Narayan (2019): “Parliament Doesn’t Have the Power to Downgrade J&K’s Status To UT,” The Quint, 8 August, available at https://www.thequint.com/voices/opinion/kashmir-bifurcation-union-territory-unconstitutional-violation-federal-structure#read-more
Supreme Court of India (2023): ARTICLE 370 OF THE CONSTITUTION, Writ Petition (Civil) No. 1099 of 2019, https://main.sci.gov.in/pdf/LU/article_370.pdf
Tharoor, Shashi (2019): “Legislative authoritarianism – that’s how Modi govt bulldozed Article 370,” The Print, 9 August, https://theprint.in/opinion/legislative-authoritarianism-thats-how-modi-govt-bulldozed-article-370-shashi-tharoor/274753/
UN, Office of the United Nations High Commissioner for Human Rights (2018): Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit–Baltista, https://www. ohchr.org/ Documents/ Countries/ PK/DevelopmentsInKashmirJune2016ToApril 2018.pdf.
Verma, Maansi (2019): “Diminishing the Role of Parliament: The Case of the Jammu and Kashmir Reorganisation Bill,” EPW Engage, 1 November, https://www.epw.in/engage/article/diminishing-role-parliament-case-jammu-and-kashmir