Ironically, what our PM deemed to be the source of ‘correct information’ for the audience, the producer of the film Aditya Dhar clarified in the trailer launch of the film to not be a factual account but a work of fiction inspired by true events. Underlying the thrills and an overt display of nationalism, one can observe distorted history and vilification of former PM Jawaharlal Nehru, over-simplification of the Kashmir issue and one-sided narration. With this tadka, one finds justified all the human rights violations and state oppression that took place in the erstwhile state of Jammu and Kashmir, including custodial torture, preventive detention, and unjustified usage of armed forces. As one can expect from a mainstream movie made on Kashmir, the Kashmiris were not only stereotypes but also dehumanised, portrayed to be terrorists, stone-pelters and militants. Along with them, the politicians of the state were shown as corrupt and greedy.

Similar to “Uri: The Surgical Strike”, a movie also directed by Aditya Dhar and based on the Pulwama terrorist attack and the resultant surgical strike conducted by India, Article 370 comes at a crucial time. Released only a few weeks before the 2024 general elections, this movie openly bats for the current Bharatiya Janata Party government’s third term by happily deeming the abrogation to be a win for the party and building up the case for Uniform Civil Code the next issue that the BJP government brings in. Notably, the movie Uri had won a national award while many had criticised it for creating a false image in the minds of the voters and having an impact on the 2019 general elections.

Summary of the plot: 

The lengthy disclaimer at the beginning of Article 370 states that it is a work of fiction inspired by true events. With that out of the way, the film then launches into an erroneous historical montage of the partition and Jammu & Kashmir’s accession to India, narrated through Ajay Devgan’s voice. Since the beginning, accusatory statements blaming Jawaharlal Nehru, who was prime minister at the time, for being the reason for the delay of accession of Kashmir to India are made.  Their argument is based on the reasoning that Nehru wanted his close friend Sheikh Abdullah to be in power. As a result, once Maharaja Hari Singh was cornered and forced to sign documents, Article 370 was finally introduced.

In the movie, Yami Gautam portrays the role of an intelligence officer, Zooni Haksar, who is also a Kashmiri Pandit. Zooni sees Kashmir as her task to be “purified”. She is first introduced to the audience while on route on a clandestine mission to track down Hizbul Mujahideen chief Burhan Wani. Notably, the only character in the movie Article 370 who still goes by his real name is Burhan. Except for him, other character such as lawmakers from Jammu and Kashmir, Home Minister Amit Shah and Prime Minister Modi, use other names and make an appearance in this movie under assumed identities. However, since the characters are close enough to each other, it is obvious who the movie is alluding to.

The film is action-packed and has a very high production value, as one might expect from an Aditya Dhar movie. The raid on a Tral home in search of Burhan Wani is the first action scene that the audience gets to witness. High drama unfolds with the protagonist finding Burhan and shooting him. The death provides the filmmakers with the opportunity to takes their time laying forth their concept of high presence of insurgency and militancy in Kashmir. Even during Burhan’s funeral scene, where a crowd of thousands is shown, the characters emphasise upon the idea of a new wave of rebels cropping up. The film shows politicians and other influential figures seated together, strategising on how to incite the populace to throw stones and, ultimately, pick up guns.

To depict the protagonist to be a victim fighting this corrupt system, Zooni is seen receiving punishments for conducting the aforementioned raid without permission rather than the expected applause. The film shows Zooni Haksar receiving criticism and being blamed for the recent upsurge in insurgency, and being ordered back to New Delhi. This is a defining moment for the film as Article 370 is not a film about Kashmir, it is a film about everything that happened in the background before Union Home Minister Amit Shah tabled the bill for the abrogation of Article 370 in the parliament on August 5, 2019.

The audience gets to witness numerous factual inaccuracies mixed with fantastical elements throughout the movie. Many actual events have been re-enacted, like the 2017 army’s deployment of a villager as a human shield, found place in the movie with the filmmakers attempting to defend the said act. A number of other events like custodial beating and torture were also normalised and shown as a necessary act to be committed against those “deserving it”. Nonetheless, this movie stays clear of overtly false facts or hate speech. The creators have taken care to avoid using hostile rhetoric, stereotyping, or demonizing any particular community. Thus, the movie focusses on warping the context of actual events and creating made-up stories about how and why certain things happened while posing as fictitious political thriller movies.

The movie single-handedly holds the allegedly dishonest politicians to be responsible for anything bad, ignoring the complexity of Kashmiri life and the background to the insurgency. The character played by Yami Gautam was heard declaring, “Terrorism is a business… nothing to do with the drama of Azaadi,” during an impassioned monologue. Her character in the film makes unreasonable statements about how women, the impoverished, and oppressed castes in Kashmir face discrimination because of Article 370 and are not eligible for the same welfare programs as the rest of India. At last, she proclaims, “Kashmir is a lost cause.”

At this point in the film, the audience sees the union government building its efforts to abrogate Article 370. Priyamani portrays Rajeshwari who working with the Prime Minister office, who is seemingly frustrated with the daily files she receives regarding violence in Kashmir. The tone of the film is established by a single interaction between Rajeshwari and Zooni, which highlights how the film views the complete issue of Kashmir, how it views its people, and which side of the debate the filmmakers place themselves. When a scene shows Rajeshwari asking Zooni regarding the Burhan Wani riad and what she would have done differently today, Zooni responds by saying, “Main uski body wpiss nahi lautati (I would not return his body)”

A re-enactment of the Pulwama incident and the prime minister honouring the slain soldiers is shown in the movie. Building upon the same, the union Cabinet Ministers are then shown engaged in animated conversation, where the character of Prime Minister—who bears a striking resemblance to our current PM Narendra Modi—vocalises, “Ek desh mai, do vidhan, do nishaan, do pradhan, nahi chal sakte.” (We cannot permit two constitutions, two flags, and two heads of state in one nation.) With this, he establishes August 5, 2019 as the potential abrogation date.

The movie retains the legal details of how the abrogation was made possible, which has now been upheld by the Supreme Court, but the path to that conclusion is reimagined as a spy thriller in which the good government agents attempt to expose the sinister plot of the former Jammy and Kashmir state assemblies. Many a times, the lines between fiction and real-life events were blurred. The film features a number of moments that are essentially recreations, including Union Home Minister Shah’s speech in the Parliament. Meanwhile, on the other side, fiction takes over with Zooni battling and eliminating the current insurgent commander in order to keep the valley peaceful. The movie concludes with the government accomplishing its goal and the measure passing both houses with little debate, much like it actually did in real life.

Towards the end, a black screen text shows up on the screen stating that when the union government abrogated Article 370 of the Indian Constitution accompanied with a complete clamp down on the Kashmir valley, not a single innocent life was lost due to the actions of the government. The film here justifies the actions of the ruling party government, and rather congratulates the union government for finding and executing the only ‘non-violent’ option. However, in reality, the government figures itself revealed that 87 civilians and 99 security personnel were killed in Jammu and Kashmir when their special status was stripped away.

The final shot before end credits clearly reveals the point of making this film and releasing it before the 2024 General Elections. A newspaper article with an old photo of Prime Minister Modi props up on the screen, with the headline reading, “Prime Minister fulfils his 30-year-old promise: Article 370 done and dusted. What is he planning next?”

An electioneering gimmick?

The movie portrays Kashmir as tranquil after two weeks of abrogation, while in reality, peace is still elusive in the area because of frequent encounters, curfews, and shutdowns. Notably, after the abrogation, the internet outage lasted for almost a full year. Filmmakers have an obligation to draw the line separating fact from fiction in the current politically unstable environment. Throughout the film, the biases were evident. There was a strong pro-government tone to the recounting of the events, which took place over a span of 70 years. The humanistic perspective was easily disregarded as a bureaucratic understanding of the Kashmir dispute and the revocation of its special status was put forth. It is impossible to implore the audience to ignore the political message of the movie, particularly in regards to the timing of its release.

Related:

The complex design of propaganda & narrative manipulation: India

Film as Propaganda: the months between June 2023 & May 2024

IFFI jury chair outraged over inclusion of “Kashmir Files”; calls it propaganda

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Supreme Court’s verdict on Article 370 in nutshell :

•  President’s order (CO 273) abrogating the special status of Jammu and Kashmir upheld.

•  Article 370 is a temporary provision.

•  J&K retained no sovereignty.

•  CO 272 (which changed the definition of ‘J&K Constituent Assembly’ as ‘J&K Legislative Assembly’) is invalid. But this is of no consequence since the Court held that the President can declare 370 inoperative even without any recommendation of J&K Constituent Assembly.

• Court did not decide whether the conversion of J&K as State was invalid since Union undertook to restore the statehood to J&K as soon as possible. Court upholds the creation of Ladakh UT.

• Court directs that elections to the J&K Assembly be held by September 30, 2024.

• Justice Kaul recommends that a Truth and Reconciliatory Commission be set up to investigate and report on the human rights violations by both State and non-State actors carried out in Kashmir valley since 1980s.

NEW DELHI: A five-judge Constitution Bench headed by Chief Justice of India (CJI) Y V Chandrachud on Monday rejected arguments by petitioners that no irreversible decisions could be taken by the Centre during President’s Rule in Jammu and Kashmir.

A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant delivered the judgment about half an hour later than the scheduled time. The bench pronounced its verdict on pleas challenging the Centre’s decision to abrogate (Repeal) of provision of Article 370 of the Constitution which granted special status to J&K.

Unanimous verdict by Supreme Court on Article 370

“Every decision taken by the Centre on behalf of the state during Presidential Rule can’t be challenged,” CJI Chandrachud said while reading out his judgement. The CJI also held that Article 370 is a temporary provision.

The proceedings and pronouncement of the judgment by the Constitution bench were live-streamed from the Supreme Chamber No: 1 through the Supreme Court channel and watched by the people, who could not be present in the court. The delay, some reports suggested, in the announcement of the verdict was due to some technical glitch in the live-streaming equipment.

Article 370, which granted special status to Jammu and Kashmir, was abrogated in 2019 and the state was divided and demoted into two Union Territories – Jammu and Kashmir and Ladakh.

President’s order to scrap Jammu and Kashmir’s special status ‘valid’

Supreme Court upheld the validity of the Union Government’s 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution.

The court held that the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian Constitution to the State of J&K. It was held that Article 370 was a temporary provision.

SC directs restoration of Statehood to J&K

The court directed for the Union to restore the statehood of J&K as soon as possible but left the issue of the reorginazation of J&K into Union Territory (UT) open. Further, the reorganisation of Ladakh as UT was upheld.

“The power of the President under Article 370(3) to issue a notification that Article 370 ceases to exist subsists even after the dissolution of the J&K Constituent Assembly,” the top judge said, adding that the recommendation of the Constituent Assembly was not binding on the President. He added that the J&K Constituent Assembly was intended to be a temporary body.

“When the constituent assembly ceased to exist, the special condition for which Article 370 was introduced ceased to exist but the situation in the state remained and thus the article continued,” CJI Chandrachud elaborated.

The Apex Court had reserved the judgment in the matter on September 5, 2023 after hearing it for sixteen long days. It may be recalled that the petitioners in the matter had also challenged the J&K Reorganization Act which bifurcated the State into Union Territories of J&K and Ladakh.

There were three judgements in the matter- one by CJI DY Chandrachud for himself and for Justices Gavai and Surya Kant. The second was a concurring opinion authored by Justice SK Kaul. Justice Sanjiv Khanna concurred with both the judgements.

Presidential proclamations announcing President’s Rule not challenged

The court held that it need not adjudicate on the validity of the presidential proclamations announcing President’s Rule in the State since petitioners did not challenge the same. In any case, the court found that no material relief could be given as the President’s Rule was withdrawn in October 2019.

The court held that there are limitations on power of the Union and States when proclamation of presidential rule was in force. It stated that the scope of the power of Union depends on the circumstances. The court added that the exercise of power under Article 356 must have a reasonable nexus with the object of the proclamation.

Further, the court stated that there were innumerable decisions taken by Union on behalf of States. Thus, it added, “Every decision taken by Union on behalf of State during Presidential rule not open to challenge…this will lead to the administration of state to a standstill…“

The court rejected the argument of petitioners that Union cannot take actions of irreversible consequences in the State during Presidential rule. Further, the argument of the petitioners that the Parliament can only make the law-making powers of the State when the Presidential rule was in force was also not accepted.

However, the court held that the exercise of Presidents’ power after the proclamation are subject to judicial review. It was held that the power of Parliament under Article 356(1) to exercise powers on behalf of State assembly was not restricted to law making powers.

The court stated that the Proclamation of Maharaja stated that the Constitution of India will supersede. With this, the court added that the paragraph of Instrument of Accession ceased to exist. The court stated that the constitutional set up did not indicate that Jammu and Kashmir retained sovereignty.

The CJI, in his judgement, stated that there was a clear absence in the Constitution of Jammu and Kashmir to the reference of sovereignty and that the State of Jammu and Kashmir became an integral part of India is evident from Articles 1 and 370 of the Constitution of India.

The CJI stated– “All States in the country have legislative and executive power, albeit to differing degrees. Article 371A to 371J are examples of special arrangements for different states. This is an example of asymmetric federalism.” It added that Article 370 was a feature of asymmetric federalism and not sovereignty.

Article 370 a ‘temporary provision’, President had power to scrap it

The CJI, in his judgement stated that Article 370 was held to be a temporary provision on a historical reading, as per which it was a transitory and temporary provision. The court added that the power of the President under Article 370(3) to issue a notification that Article 370 ceases to exist subsists even after the dissolution of the J&K Constituent Assembly.

As per the judgement, the recommendation of the Constituent Assembly was not binding on the President. It stated that the J&K Constituent Assembly was intended to be a temporary body. When the constituent assembly ceased to exist, the special condition for which 370 was introduced ceased to exist but the situation in the state remained and thus the article continued.

The court found that holding that the power under Article 370(3) ceases to exist after the dissolution of the J&K Constituent Assembly would lead to the freezing of the process of integration. The court held that the power under Article 370(3) did not cease after the J&K Constituent assembly ceased to exist.

The CJI stated– “This court cannot sit in appeal over the decision of the President of India on whether the special circumstances under Article 370 exist…History shows gradual process of constitutional integration was not going on…It was not as if after 70 years Constitution of India was applied in one go. It was a culmination of the integration process.“

Accordingly, it was held that all provisions of the Constitution of India could be applied to J&K using Article 370(1)(d) in one go.

In furtherance of the same, it was held that the exercise of Presidential Power was valid. The court held that principle of consultation and collaboration was not required to be followed for the exercise of Presidential power and the concurrence of the State government was not required to apply all provisions of the Constitution using Article 370(1)(d). Thus, the President taking the concurrence of the Union Government was not malafide. The court held that the views of the State legislature under Article 3 proviso were recommendatory.

On the other question, of whether the Parliament can convert a State into a Union Territory, the CJI said it would be left open.

Jammu and Kashmir doesn’t hold internal sovereignty

In his concluding points, the CJI stated that the state of J&K does not retain any element of sovereignty. “It does not have internal sovereignty. Article 370 is a feature of asymmetric federalism and not sovereignty.”

The top judge directed the Election Commission of India to hold elections as soon as possible.

“We direct that steps shall be taken by the Election Commission of India to conduct elections to the J&K assembly by September 30. Restoration of statehood shall take place as soon as possible.”

CJI Chandrachud at the outset said that there are three judgements by the five-judge bench on the issue.

“There are three judgments. One by CJI for himself for Justice Gavai and Surya Kant. There is a concurring opinion by Justice Kaul. Justice Sanjiv Khanna has concurred with both,” the CJI said.

Justice SK Kaul, in his judgement, stated – “Purpose of Article 370 was to slowly bring Jammu and Kashmir on par with the other States of India. Requirement of recommendation of J&K Constituent Assembly cannot be read in a manner making the larger intention redundant.”

The majority judgment authored by the CJI stated that while the change sought to be made by CO 272 appeared to be to Article 367 at the first plush, it effectively changed Article 370. The court found these changes to be substantive. The court stated that the interpretation clause could not be modified to amend an Article bypassing the amendment process.

“We have, therefore, held that the amendments made to Article 370 by taking recourse to Article 367 as ultra vires,” stated the court while holding that the interpretative clause could not be used to bypass the specific route for a constitutional amendment. “Permitting such amendments by such a surreptitious method would be disastrous,” stated the court. The court stated that Article 370 could not be amended by exercise of power under Article 370(1)(d).

The court noted that the SG had submitted that statehood of J&K would be restored and the status of UT was temporary for J&K. In view of the submission made by the SG, the court stated that it did find it necessary to determine whether the reorginazation of J&K into UT was valid.

The reorganisation of Ladakh as Union Territory was upheld as Article 3 allowed a portion of State to be made as UT. The question whether Parliament can convert a State into a Union Territory was left open.

Elections should held in J&K by September 2024

The court directed that steps shall be taken by the Election Commission of India to conduct elections to the J&K assembly by September 30. Further, it stated that the restoration of statehood shall take place as soon as possible.

The petitioner counsels argued for the first nine days and stressed upon the unique nature of J&K’s relationship with India which got embodied in the Indian constitutional setup, highlighting that the Maharaja of J&K did not give up the internal sovereignty to the Dominion of India.

Thus, while the power to make laws relating to foreign affairs, communication, and defence lied with the Union as per the Instrument of Accession (IoA), the internal sovereignty of J&K which provided it with powers to legislate on all other matters remained with the Maharaja. It was argued that Article 370 had assumed permanence and was no longer a ‘temporary’ provision post the dissolution of the J&K Constituent Assembly in 1957.

The petitioners further contended that the Indian parliament, under the current constitutional framework, could not convert itself into a Constituent Assembly. They also stressed upon the misuse of Article 356, which imposes President’s Rule in a State. It was emphasised that the purpose of Article 356 was to restore state machinery and not destroy it but the President’s Rule in J&K was imposed to destroy the state legislature.

It was added that President’s Rule under Article 356 was in its nature “temporary” and thus permanent actions could not be taken under it. The petitioners also argued that the amendment of Article 370 through Article 367 was invalid.

Finally, it was stated that while Article 3 of the Indian Constitution granted the power to Union to alter the boundaries of states and even create smaller states through bifurcation, it had never before been used to convert an entire state into a Union Territory (UT). The negative impact of turning J&K into a UT on the constitutional structure was also underlined. A detailed summary on petitioners’ arguments can be found here.

Per contra, the Union Government along with other respondents argued that the abrogation of Article 370 resolved the ‘psychological duality’ of the people of J&K and that there existed discrimination against the people of J&K before the abrogation as the Indian constitution was not fully applied to the state prior to 2019.

It was underlined that it was very clear that the Constitution makers foresaw Article 370 as a ‘temporary’ provision and wanted it ‘to die’. Challenging the assertion of an exclusive special status for J&K, the respondents argued that during the late 1930s, a multitude of princely states were in the process of drafting their own constitutions.

It was also submitted that the execution of a merger agreement was not necessary to become a part of the Indian nation. Further, internal sovereignty could not be confused with sovereignty. It was stated that J&K was only converted to a UT owing to it being a sensitive border state for a temporary time period and that its statehood would be restored. It was also argued that if Article 367 was not modified, it would have the effect on Article 370 becoming a permanent feature of the Indian Constitution, as sans the Constituent Assembly, Article 370 could never be modified.

Finally, the respondents asserted that the J&K Constitution was subservient and subordinate to the Indian Constitution and the J&K Constitution never had original constituent powers. Thus, even if the Constituent Assembly had been in existence, it would have a limited role to play in abrogation of Article 370 as its decision would be only “recommendatory” in nature and the President could have taken any decision even if the Constituent Assembly did not agree to the same.

Courtesy: The Kashmir Times

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“Soon after independence all these states acceded to one or the other dominion as per the arrangement except Hyderabad, Junagadh and Kashmir.”

Historical Context

Jammu and Kashmir was one of the 562 States under the suzerainty of British Crown after the independence of India and its partition on the basis of religion which was left to decide its future. All these states automatically regained full sovereign and independent status, free to join either of the two dominions or remain independent. The underlying principle for the choice before the states was the will of the people and the geographical location, even though these principles were not binding on the princely states.

According to legal expert, Faizan Mustafa, technically, the Instrument of Accession was like a treaty between two sovereign countries that had decided to work together. The maxim of pacta sunt servanda in international law, which governs contracts or treaties between states, asks that promises must be honoured.

The last Viceroy of the British empire, Lord Mountbatten put forward before the rulers two documents – the Instrument of Accession and a Standstill Agreement, for the continuance for the time being of agreements and arrangements in matters of common concern between the states and the dominion of India.

Mountbatten told the princes on July 25 1947 that the “Indian independence Act releases the States from all their obligations and the states have complete freedom technically and legally they are independent.” He added that the states are theoretically free to link their future with whichever they may care “but when I say they are at liberty to link up with either of the two dominions may I point out that there are certain geographical compulsions which cannot be avoided.” He elaborated you “cannot run away from the dominion government which is your neighbour any more than you can run away from the subject for who’s welfare you are responsible.”[i]

Soon after independence all these states acceded to one or the other dominion as per the arrangement except Hyderabad, Junagadh and Kashmir.

Junagadh and J&K

A.G. Noorani in his book ‘The Kashmir dispute – 1947 to 2012’ makes a comparison of Jammu and Kashmir which was a Muslim majority State ruled by a Hindu ruler and Junagadh, a Hindu majority ruled by a Muslim ruler. India’s first prime minister Jawaharlal Nehru had objected to Junagadh’s accession to Pakistan on grounds that the population of Junagadh was 80% Hindu and batted for a referendum under impartial auspices. The princely state was surrounded on all of its land borders by India, with an outlet onto the Arabian sea. Its ruler, Nawab Muhammad Mahabat Khanji argued that Junagadh was linked to Pakistan by sea against the advice of Mountbatten.

The Indian position was that Junagadh had acceded to Pakistan ignoring geographical considerations and the principle of religion or the exercise of the will of the people. This became the basis of Indian army’s military intervention in Junagadh to wrest it of Pakistan’s and the Muslim ruler’s control. This, however, was followed by a hasty referendum in February 1948 and by an almost unanimous vote the people showed their preference for India. Many scholars, however, have observed that India annexed Junagadh by force and laid down the international opinion on the principle of accession – geographical contiguity to the dominion and the demographics. The mobilisation of Indian defence forces in the lead up to the accession of Junagadh in November 1947 and the management of violence directed at Junagadh’s Muslims afterwards are an instance of the forcible incorporation of Indian princely states and Indian Muslims into the reconstructed post-colonial state.[ii]

Mountbatten and Ayyangar both agreed that the issue of geographical contiguity had no legal standing and that Junagadh’s accession to Pakistan was strictly and legally correct. But Sardar Patel demanded that the matter of the state’s accession should be decided by its people instead of the ruler.

“The state of Jammu and Kashmir had concluded a Standstill Agreement with the government of Pakistan in regard to the maintenance of the existing arrangement in respect of posts and telegraphs etc and thus it was open to Kashmir to exceed to either of the two dominions or remain independent.”

Hyderabad, ruled by a Muslim leader presiding over a Hindu majority and with no geographical link to Pakistan, met a similar fate. Stephen P. Cohen writes, “The vision of a future India and Pakistan rubbed against the ambitions of some of the princes, with the result that the rush to force them to join one or the other ignited several significant conflicts.” Although, technically, the decision to accede was in the hands of the ruler, not the ruled, India used force to incorporate Hyderabad and Junagadh, he writes.[iii]

Scholars are divided on the question of whether the decision was to be made by the rulers or the ruled. The will of the latter, a principally more moral option, could be asserted only through a referendum. Whatever the morality of the question, India could not have applied two yardsticks for the different princely states awaiting a decision on their future.

Besides, if the principle of geographical contiguity and demographics was valid for Junagadh, could a different yardstick be applied to Kashmir. The state of Jammu and Kashmir had concluded a Standstill Agreement with the government of Pakistan in regard to the maintenance of the existing arrangement in respect of posts and telegraphs etc and thus it was open to Kashmir to exceed to either of the two dominions or remain independent.

“This period of indecisiveness coincided with several other almost simultaneous events – the communal troubles in Jammu following the movement of refugees from West Punjab into Jammu, the Poonch revolt against the Maharaja and the armed tribals entering the state with the connivance and support of the Pakistan authorities, forcing the Maharaja to send a desperate distress appeal for help to the government of India.”

Period of indecisiveness

Mahatma Gandhi on a visit to the state in August 1947 said that the will of the Kashmiris should decide the fate of Jammu and Kashmir and added that the sooner this was done the better he also hoped that the question would be decided between the two dominions, the Maharaja and the Kashmiris, elaborating that “if the four could come to a joint decision then much trouble would be saved.”

The Maharaja who wanted to save and safeguard his princely privileges was uncomfortable in signing an accession either with India, looking towards a democratic and anti-feudal future, or with Pakistan, with its Muslim majority. Sheikh Abdullah, who was released from jail in September 1947, also made his preference publicly known towards independence, warning that that if the state declares accession to India or Pakistan, he would raise the banner of revolt.

This period of indecisiveness coincided with several other almost simultaneous events – the communal troubles in Jammu following the movement of refugees from West Punjab into Jammu, the Poonch revolt against the Maharaja and the armed tribals entering the state with the connivance and support of the Pakistan authorities, forcing the Maharaja to send a desperate distress appeal for help to the government of India. The exact chronology of events is a matter of speculation and academic debate, in the light of fuzzy evidence but what is significant is that all of these factors were co-related and had a direct or indirect bearing on the other, engendering tensions and creating divisive fault lines that would become part and parcel of the region’s destiny.

Instrument of Accession

After the armed tribals from North West Frontier province entered Kashmir, Indian minister V.P. Menon flew to Srinagar where he met the Maharaja on October 26, 1947 and both left Srinagar for Delhi where Menon reported to the defense committee that the only basis of sending troops into an independent country had to be accession. He also opined that in view of the composition of the population, accession should be conditional on the will of the people being ascertained after the raiders have been driven out of the state and law and order have been restored. After this meeting it was decided that the accession of Jammu and Kashmir should be accepted subject to the proviso that a plebiscite would be held in the state when the law and order situation allowed this decision. This had the fullest support of Sheikh Abdullah, noted Menon.

The circumstances of accession were peculiar. The Hindu Maharaja of the Muslim majority state had initially wanted to stay independent. He signed the Instrument of Accession on October 26, 1947, after Pashtun tribals aided by Pakistan invaded Jammu and Kashmir, and India agreed to help only on the condition of accession. The Schedule appended to the Instrument of Accession clearly gave the Indian Parliament power to legislate for Jammu and Kashmir on only three subjects – defence, external affairs and communications.

Faizan Mustafa writes, In Clause 5 of the Instrument of Accession, Hari Singh said that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of The Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. In Clause 7, he said: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”

Article 370 was a constitutional recognition of the conditions mentioned in the Instrument of Accession, and reflected the contractual rights and obligations of the two parties.

In his reply on October 27 1947, Lord Mountbatten responded, “it is my government’s wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invaders, the question of the state’s accession should be settled by a reference to the people.”

Particularities of J&K accession

Noorani notes that Jammu and Kashmir accession was the only unique instance of being accompanied by a letter which the Maharaja wrote to Lord Mountbatten. The significant details of the letter state that “Jammu and Kashmir is contiguous to both the dominions it has vital economic and cultural links with both of them”. It also points out its international strategic significance with proximity to Soviet republic and China. He mentioned that “under the standstill agreement the Pakistan government was operating Posts and Telegraph system in the state” and that “Pakistan had tried to put pressure on the state to accede culminating in the communal tribal raids”. It added, “with the conditions obtaining at present in my state and the great emergency of the situation as it exists, I have no option but to ask for help from the Indian dominion. Naturally they cannot send the help asked for by me without my state acceding to the dominion of India I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your government the other alternative is to leave my state and my people to free booters.”

In his reply on October 27 1947, Lord Mountbatten responded, “it is my government’s wish that as soon as law and order have been restored in Kashmir and her soil cleared of the invaders, the question of the state’s accession should be settled by a reference to the people.”

The accession thus was not permanent and irrevocable. It had to be settled by a referendum which was principally agreed to by the Indian government before and after the dispute went to United Nations. New Delhi took the case to the UN resulting in a UN resolution to resolve the dispute through a referendum after demilitarization from both sides, beginning with withdrawal of Pakistan Army from the state. Both India and Pakistan occupy the two parts of J&K and have kept the political dispute alive, giving rise to insurgency since 1989.

Article 370

On October 17, 1949, Article 370 was included in India’s Constitution by the Constituent Assembly after it was moved for consideration as Article 306A. In defence of the special status for Jammu and Kashmir during the Indian Constituent Assembly proceedings, N. Gopalaswamy Ayyangar had pointed out that the condition of the state was “not ripe for full integration” and reasoned that a significant degree of autonomy had to be given within the constitutional structure of the Indian Union. He said, “The effect of this Article is that the Jammu and Kashmir State which is now a part of India, will be a unit of the future federal Republic of India.”[iv]

Ayyangar said, “we have also agreed that the will of the people through the instrument of the Constituent Assembly will determine the constitution of the state as well as the sphere of union jurisdiction over the state. At present, the legislature which was known as the Praja Sabha in the state is dead. but neither the legislature nor the constituent assembly can be convoked or can function until complete peace comes to prevail in that state. We have therefore to deal with the government of the state which, as represented in its council of ministers, reflects the opinion of the largest political party in the state. Till a Constituent Assembly comes into being only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangements existing in the case of other states now if you remember the viewpoints that I have mentioned, it is an inevitable conclusion that, at the present moment, we could establish only an interim system Article 306A is an attempt to establish such a system.”[v]

It is also a relevant piece of history that Article 370 (then Article 306A) was passed unanimously with only one dissenter. He was interestingly not the Hindu right-wing ideologue, Shyama Prasad Mukherjee, but Maulana Hasrat Mohani, founder of Communist Party of India. The latter’s objection was not to the grant of special status to Kashmir but he was seeking similar models of autonomy for all other states of India in pursuance of his concept of federalism.[vi]

Promise of referendum

The commitments to Kashmir’s special status and promise of a referendum were reiterated several times, thereafter. At a press conference on June 11, 1951, Nehru said, “we have made it perfectly clear that the constituent assembly of Kashmir was not meant and is not meant to come in the way of any decision which might flow ultimately from the security council’s decisions” in response to a question.

At another press conference in New Delhi on June 21, 1952 Nehru said, “when Security Council asked us about it we made it clear to the council again that the Kashmir government had every right to have a constituent assembly to frame the internal constitution but so far as we were concerned we would not be bound by their decision on the question before the Security Council”.

Subsequently in a speech delivered by Nehru in the Lok Sabha on 26th June 1952, Nehru said, “Let us suppose there was a proper plebiscite there and the people of Kashmir said ‘we do not want to be with India’. Well, we are committed to it. We would accept it. It might pain us but we would not send an army against them. We might accept that, however, much hurt we might feel about it and we would change our constitution about it.” In another important speech in the parliament on 7th August 1952, Nehru again said, “We do not want to win people against their will and with the help of armed force and if the people of Jammu and Kashmir state so wish it to part company from us, they can go their way and we shall go our way. We want no forced marriages no forced unions like this.” [vii]

Legal scholar, Faizan Mustafa, writes, “Some critics of Article 370 have argued that Kashmir joined India in 1947 without any conditions, and Article 370 unnecessarily gave it special status. However, the drafting of the Constitution ended on November 26, 1949 — Article 370 had been included before the Constitution was adopted.”

Conciliation and resolution, however, always remained peppered with mutual suspicions. Attempts to resolve Kashmir dispute came a cropper right in the beginning. New Delhi and Pakistan issued a joint communique on August 21,1953 to reiterate their commitment to holding a plebiscite on Kashmir and decided that the plebiscite administrator should be appointed by April 1954. Both the prime ministers of India and Pakistan took keen interests, following this significant communique with further correspondence and were nearing an agreement both with regard to a regional plebiscite and the choice of the plebiscite administration to be selected from an Asian State but signs of discord soon appeared.

Apparently, Nehru developed cold feet on the news of massive US aid for Pakistan and negotiations for a military pact between Pakistan and United States, invoking fears in New Delhi that United States would interfere in the Kashmir question. Nehru conveyed his apprehensions to Pakistan but even after the US-Pakistan pact was signed on May 15, 1954 Nehru said India still stands by her international commitments on the Kashmir issue and “will implement them at the appropriate time.”

These statements pointing to India’s reiteration of commitment towards referendum and settlement of Kashmir dispute are indications of the legality of Kashmir dispute. Kashmir’s accession to India and its consequent constitutional status were thus only interim arrangements. Article 370 was temporary only till the Constituent Assembly of Jammu and Kashmir could modify, retain or reject it. The Constituent Assembly of Kashmir before adjourning sine die in 1957 decided to retain it.

Legal scholar, Faizan Mustafa, writes, “Some critics of Article 370 have argued that Kashmir joined India in 1947 without any conditions, and Article 370 unnecessarily gave it special status. However, the drafting of the Constitution ended on November 26, 1949 — Article 370 had been included before the Constitution was adopted.”

Inevitability of special status and anxieties

The need to recognize the special status in view of the nature of partition and the history of Jammu and Kashmir coupled with the unique circumstances of its accession continued to be felt even as New Delhi remained uneasy with respect to the state’s Muslim majority status in conjunction with the hostile journey between India and Pakistan. The anxieties of the Muslims living within were reciprocal like Newton’s third law of motion; and both these eventually began to shape the aspirations and desires of the minorities of Jammu and Kashmir. The Indian state was not only mindful of both. It played up the latter to counter the former. But before that happened, Nehru was guided by the moral and democratic question.

Abdullah, who had played a key role in Kashmir’s conditional accession with India had expressed fears about the future of a Muslim majority region in India, thus, earning Nehru’s mistrust. When the Sheikh brought plebiscite demand out of the bag, it was a red herring for Nehru.

According to A.G. Noorani, the 1952 Delhi Agreement, between then Indian Prime Minister Jawaharlal Nehru and Kashmiri leader Shiekh Mohammad Abdullah, has explicitly given the solemn pledge to protect identity and culture of Kashmiri people by preventing outsiders to own land in the disputed region as well as to protect its demographic character in the Hindu majority India, an identical reason that compelled Hindu ruler to enact the law in 1923.

“So, the present government of Kashmir is very anxious to preserve that right because they are afraid, and I think rightly afraid, that Kashmir would be overrun by people whose sole qualification might be the possession of too much money and nothing else, who might buy up, and get the delectable places. So, we agreed and noted this down,” Nehru told Indian parliament in 1952.

Abdullah, who had played a key role in Kashmir’s conditional accession with India had expressed fears about the future of a Muslim majority region in India, thus, earning Nehru’s mistrust. When the Sheikh brought plebiscite demand out of the bag, it was a red herring for Nehru.

Erosion of Article 370

These mutual anxieties and insecurities prompted New Delhi to manipulate Jammu and Kashmir’s politics and continuously make attempts to erode its special status and hollow out Article 370 after Sheikh’s deposition and arrest. The Presidential Order of 1954 and subsequent orders allowed the extension of almost the entire Indian Constitution to Jammu and Kashmir.

94 out of 97 entries in the Union List were applicable to Jammu and Kashmir, 260 out of the 395 Articles of the Constitution as well as 7 out of the 12 Schedules of the Indian Constitution were extended to the state before the Article 370 was completely decimated on August 5, 2019. Article 35 A, which defined the classes of persons who are, or shall be, permanent residents of the state of Jammu and Kashmir; or conferring on such permanent residents any special rights like employment in the state government and acquisition of immovable property, came into being through one such presidential order but only to lend clarity to the definition of Jammu and Kashmir’s ‘permanent resident’.

Eventually, the Constituent Assembly of Jammu and Kashmir enacted the Constitution of Jammu and Kashmir, which accepted the state’s position as an integral part of India while retaining the special status provided under Article 370. It also barred on the future Legislative Assembly from interfering with the constitutional relationship between the state and the Union. The full and final seal to Article 370 was stamped making it irrevocable.

Was Article 370 temporary or irrevocable

A common myth with respect to Article 370 is that it was temporary and thus could have been revoked any time. According to the constitution, Article 370 was a temporary provision in the Constitution to govern the state’s relationship with the rest of the Union but only till such time as the Constituent Assembly of Jammu and Kashmir met to determine the exact nature of the relationship. Eventually, the Constituent Assembly of Jammu and Kashmir enacted the Constitution of Jammu and Kashmir, which accepted the state’s position as an integral part of India while retaining the special status provided under Article 370. It also barred on the future Legislative Assembly from interfering with the constitutional relationship between the state and the Union. The full and final seal to Article 370 was stamped making it irrevocable.

The Jammu and Kashmir Constituent Assembly adopted a Constitution on November 17, 1956, to come into force on January 26, 1957. Its Article 3 stated that “the State of Jammu and Kashmir is and shall be an integral part of the Union of India.” Article 4 lays down that the territory of the State shall comprise of the territories which on the 15^th of August 1947 were under the sovereignty or suzerainty of the ruler of the State. It was also decided that the legislative assembly would consist of 100 members and 25 seats were to be left vacant “until the area of the State under the occupation of Pakistan ceases to be occupied…..”

Several court rulings in recent years are illustrative of the fact. In 2016, the Supreme Court acknowledged the special status of J&K and reaffirmed that Article 370 was not temporary. The court observed that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir. In 2017, Delhi High Court rejected a petition that argued that Article 370 was temporary, and that its continuation was a fraud on the Constitution. The same year, the apex court said that due to historical reasons, Jammu and Kashmir had a special status. In April 2018, the Supreme Court said that the word “temporary” in the headnote notwithstanding, Article 370 was not temporary.

The verdicts prior to these were also on similar lines. In the famous 1968 case of Sampat Prakash versus State of Jammu and Kashmir, the apex court decided that Article 370 could be invoked even after the dissolution of the Constituent Assembly of Jammu and Kashmir. “Article 370 has never ceased to be operative,” the Supreme Court laid down.

August 5, 2019 J&K Reorganisation Act

The watering down of Article 370, re-orientation of Jammu and Kashmir state, its division and creation of two separate union territories on August 5, 2019 thus brings into focus the legality of such a move, as is argued by constitutional jurists. The manner in which this was done raises questions of constitutional, moral and democratic propriety.

On August 5, 2019, the constitutional changes to Jammu and Kashmir were brought by a Presidential Order 272, a statutory resolution in the parliament that recommended the president to de-operationalise Article 370 and the J&K Reorganisation Act that broke up the state into Union Territories of Ladakh, without a legislature, and Jammu and Kashmir, with an emasculated legislature, under two all-powerful Lieutenant Governors, enabling Central Government to directly rule the state.

According to this presidential order, the concurrence of the government of the state of Jammu and Kashmir has been taken. However, Jammu and Kashmir was under President’s Rule and thus the consent taken was that of the Governor, virtually a representative of the central government. This was a case of the Centre taking its own consent to amend the constitution. This was ultra vires of the constitutional provision of Article 370, according to whose Clause 3 the recommendation of the Constituent Assembly of J&K was imperative to make any amendments. However, the Constituent Assembly of J&K ceased functioning in 1957.

The President invoked modification powers under Article 370 by issuing the Constitution (Application to Jammu and Kashmir) Order, 2019 to substitute the Constituent Assembly of the state with the Legislative Assembly of the state, thereby removing the constitutional requirement to convene a newly elected Constituent Assembly to determine the future of Article 370. Since President’s rule under Article 356 was in operation in Jammu and Kashmir, the government argued that Parliament can act as the Legislative Assembly of Jammu and Kashmir while recommending the abrogation of Article 370.

The Presidential order adds a sub-clause to Article 376, replacing the terms “Constituent assembly of Jammu and Kashmir” to mean “legislative Assembly of Jammu and Kashmir” and “government of Jammu and Kashmir” to mean “governor of Jammu and Kashmir acting on the aid and advice of the council of ministers”. The Presidential order also requires the concurrence of the government of the state. But since the state at that time was under presidential rule, the consent of the Governor, an appointee of the Centre, is meaningless as it virtually means that the government is taking its own consent to radically alter the constitution.

Legal experts on Article 370 revocation

“Even if the words can be replaced, it breaches the spirit of the provision. The Constituent assembly’s recommendation is essentially to include the key stakeholder’s voice while making substantial changes to Article 370. The Centre cannot do so unilaterally,” according to senior advocate Raju Ramachandran.

When a State is under President’s rule, Article 356 (1) (b) empowers the President to vest the powers of the Legislative Assembly of the state with the Parliament. But these powers are an interim arrangement for the enactment of laws till a new Legislative Assembly is elected, so that the state is not adversely affected due to the absence of an Assembly. The consent required under Article 370 (3) is not routine legislative power. It is a constituent power which determines the nature of the constitutional relationship between Jammu and Kashmir and the rest of India.

Faizan Mustafa argues that the presidential orders were issued against the letter and spirit of the Instrument of Accession and that the August 5, 2019 were “a negation of the constitutional compact” signed between India and the J&K Maharaja. Jammu and Kashmir had acceded to India in 1947, only on three subjects – defence, foreign affairs and communication. 

What the Central Government did was to use Article 367 which provides various guidelines about how the Constitution may be interpreted to remove the necessity of J&K constituent Assembly’s consent from Clause 3 of Article 370. This is the first time that Article 370 was used to amend Article 367 eventually to amend the Article 370 itself.

Gautam Bhatia, clarifies, “370(1)(d) makes it even clearer where it refers to the “other provisions” of the Constitution that may be altered by Presidential Order (and this is how the present Presidential Order is different from previous ones, such as those that introduced Article 35A). Article 370 itself, therefore, cannot be amended by a Presidential Order.”

Thus, the interpretation of the special provision was altered to dilute the very provision and wipe it out without fulfilling the requirements under Clause 3 of Article 370. What the BJP government did by bringing a presidential order, a resolution and a bill to reorganize the state in the parliament on August 5 is to invoke modification powers under Article 370 to substitute the Constituent Assembly of the state with the Legislative Assembly of the state, thereby removing the constitutional requirement to convene a newly elected Constituent Assembly to determine the future of Article 370.

Faizan Mustafa argues that the presidential orders were issued against the letter and spirit of the Instrument of Accession and that the August 5, 2019 were “a negation of the constitutional compact” signed between India and the J&K Maharaja. Jammu and Kashmir had acceded to India in 1947, only on three subjects – defence, foreign affairs and communication.

Article 370 limited the application of the provisions of the Indian Constitution to the state of Jammu and Kashmir. Under Article 370(1)(d), constitutional provisions could be applied to the state from time to time, as modified by the President through a Presidential Order, and upon the concurrence of the state government (this was the basis for the controversial Article 35A, for example). Gautam Bhatia writes, “Perhaps the most important part of 370 was the proviso to clause 3. Clause 3 itself authorised the President to pass an order removing or modifying parts of Article 370.”

The proviso stated that: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

So, effectively, in view of dissolution of the legislative assembly in Jammu and Kashmir which is under president’s rule, the government arrogated the right of the assembly to the Parliament, where the BJP enjoys absolute majority. The August 5 changes were based on this flawed premise of deeming the J&K Governor as the legal and constitutional substitute for Constituent Assembly or even legislative assembly.

Secondly, presidential rule is temporary and therefore changes of permanent character like constitutional amendments without the existence of the elected legislative assembly amounts to a constitutional fraud.

In an interview, senior advocate Rajeev Dhavan said, “This order seeks to supersede a constitution—Jammu and Kashmir has a constitution devised by a constituent assembly. Therefore, Article 370 came into being [in 1950] while Jammu and Kashmir had not established its constitution. Article 370 was transitional only to the extent, and until, Jammu and Kashmir constitution came into place……… Jammu and Kashmir constitution [formed] by an independent constituent assembly is a fact—it is a legal fact, a spatial fact and a temporal fact. You cannot abolish it, as simple as that—it does not grow out of the [The presidential] order.”

Similar view was shared by legal expert, A.G. Noorani, who has authored a book on Article 370, among several other books on Kashmir. “The Indian government’s power to abrogate Article 370 had vanished after the dissolution of Kashmir’s Constituent Assembly in 1956. Article 370 was meant to express the identity of Jammu and Kashmir, because of the special circumstances, in which it acceded to India. And that identity is sought to be destroyed. It got a special status because of the historical circumstances,” he explained.

Emphasising that the Indian parliament was not empowered to either amend or delete the provision, Noorani said, “For this, the approval of the J&K State’s Constituent Assembly was necessary. Any concurrence of the state government is always subject to the elected assembly’s final approval. When the state is under governor’s rule or president’s rule, neither can accord that concurrence,” he said. “The Centre cannot acquire concurrence from its own handpicked appointee (Governor) removable at will,” he wrote in an article and termed the action by Indian government “illegal and against the spirit of its own constitution”.

The constituent assembly of Jammu and Kashmir did not exist on August 5, 2019. The legislative assembly was dissolved.  No consultations were ever held with any of the stakeholders turning this exercise into something that invokes a sense of humiliation among its citizens. Not only were the people’s special status rights snatched, they were also divided and granted a status that was much lower than the status of a fully integrated state in this forced integration process as per the J&K Re-Organisation Act that was subsequently passed on August 9, 2019.

There are four grounds to believe this assertion to be reasonably true.  1) The Instrument of Accession with Jammu and Kashmir was finalized with the provision of Article 370 in the Indian Constitution. 2) The Bill was not referred by the President to the state assembly 3) Governor is neither an equivalent of constituent assembly or legislative assembly and thus cannot arrogate on himself the legislative powers of the state government. 4) The illegitimacy of using Article 370 to amend Article 367 which in turn is used to completely make Article 370 redundant.

Senior Congress leader, parliamentarian and lawyer, Manish Tewari, in an interview with Kashmir Times, said that the grounds for bringing down Article 370 was laid down in December 2018 when the presidential proclamation, announcing president’s rule in Jammu and Kashmir, suspended proviso 2 of Article 3 of the Indian Constitution. He said that this was unique and removed the mandatory provision of consultation with the state legislature before re-organisation of any state.

J&K residents stripped of agency

Article 370 was amended, not revoked, neutered and made inoperative. By virtue of this dilution, all the Presidential Orders since 1950, including Article 35A that defined who a permanent resident is, protected the Muslim majority status of the state and protected the exclusive land rights of all its citizens, stood invalidated, and Indian constitution was extended to state of Jammu and Kashmir, truncated and demoted into two union territories in toto.

The constituent assembly of Jammu and Kashmir did not exist on August 5, 2019. The legislative assembly was dissolved.  No consultations were ever held with any of the stakeholders turning this exercise into something that invokes a sense of humiliation among its citizens. Not only were the people’s special status rights snatched, they were also divided and granted a status that was much lower than the status of a fully integrated state in this forced integration process as per the J&K Re-Organisation Act that was subsequently passed on August 9, 2019.

Effectively, the people of Jammu and Kashmir had not been consulted about their future by circumventing the constitutional provisions. Before the union home minister moved the legislation, 13-14 million people whose fate Parliament was deciding were virtually put under a siege with imposition of Section 144, excessive militarization and internet ban. With sweeping arrests and detentions, civil rights kept under prolonged suspension, what was abrogated were the last remaining vestiges of democracy in Jammu and Kashmir. A smooth transition from autonomy to complete integration was ensured by trampling the civil rights of its 14 million people under the sheer weight of military jackboots.

Even the pretense of democracy was discarded in doing this, making the residents of Jammu and Kashmir feel emasculated, humiliated and disenfranchised.

History of political, constitutional frauds

Political and constitutional frauds on Kashmir have been part of the last seven decades as Article 370 had been hollowed out and reduced, as infamously mentioned by former prime minister Gulzari Lal Nanda, to a “tunnel in the wall”, mostly through presidential orders and often papered with consent of the state legislature. Perhaps, the only similarity with the present case is the gross constitutional abuse in 1986 when the presidential order extended to Jammu and Kashmir Article 249 of the Constitution in order to empower the Parliament to legislate on the strength of a Rajya Sabha resolution and the concurrence was given by Centre’s own appointee, the then Governor Jagmohan.

Despite this similarity in the way concurrence was sought, August 5, 2019 presidential order was distinct as it signalled the absolute demolition of the edifice on which the compact between India and Kashmir was founded.

The constitutional change also sets a dangerous precedent for India’s federalism and its asymmetric federalism model, in which Jammu and Kashmir occupied the centre-space. Federalism has been part of the basic structure of India’s Constitution, as also upheld by the Supreme Court. Article 370 was an essential facet of India’s federalism because it governed the relationship of the Union with Jammu and Kashmir.

The August 2019 changes prompted A C Michael, Former Member of Delhi Minorities Commission to remark, “Through same act, Delhi’s statehood could be withdrawn by putting who is who of India residing in Delhi under house arrest. Same act, can be used to bifurcate states under the government of other political parties. A very dangerous precedence set by the present government for future governments. This is an emergency of another kind.”

The anxieties of the Centre repeating the J&K experiment elsewhere are deeper in several other states with certain special provisions. Article 35A closely resembles Article 371 of India’s Constitution that offers similar safeguards to the people of the north-eastern states with respect to government jobs, ownership and transfer of land and its resources. Under Article 371A, central laws do not automatically apply to the state unless approved by its legislature. The state enjoys full autonomy with respect to customary practices and laws with respect to land ownership and its resources. Similarly, in Manipur (Article 371C) and Arunachal Pradesh (Article 371H), the local laws safeguard the land and customary rights of tribals. With respect to Sikkim (Article 371F), even the Supreme Court’s jurisdiction has been restricted on issues of treaties. Ownership of property is also reserved in Uttarakhand, Himachal Pradesh, and parts of Jharkhand and Chhattisgarh, among other states. Maharashtra and Gujarat also enjoy a special status under Article 371. Under this provision, the President may provide for special responsibilities to the governors of the two states for establishing separate boards for Vidarbha and Marathwada (in Maharashtra), and Saurashtra and Kutch (in Gujarat), and equitable distribution of funds to these areas.

Pratap Bhanu Mehta aptly summed up the stealthy measures as a new form of repression “reminiscent of the Reichstag or Chinese constitutional ideology that sees federalism as an obstacle to a strong state and homogenous culture” and expressed concerns about India’s asymmetric federalism arrangements outside of Kashmir. He wrote that if such precedents of unilaterally declaring states to be Union Territory were to be applied elsewhere, we will simply become “a union of Union Territories that happen to be a state at the discretion of the Centre.”

“For the people of Jammu and Kashmir, what was lost was not just the special status of J&K with its emotive appeal but also the privileges and protections it gave to the residents of J&K.”

What changed for J&K

Several petitions challenging the J&K Reorganisation, including the de-operationalisation of Article 370, were filed in the apex court within weeks of the action. In July 2023, the Supreme Court began hearings on a daily basis and reserved the judgement. While that is expected to be delivered on December 11, 2023, the government has used J&K Reservation Act as basis for introducing sweeping legal and political changes in Jammu and Kashmir with far-reaching consequences. Many central laws have been extended to J&K and erstwhile state’s own laws have been repealed.

In a late-night move on March 31, 2020, one week after the Covid-19 nation-wide lockdown was announced, the Indian federal government announced the gazette notification altering over 100 J&K laws and totally repealing about 30 through a simple order called the J&K Reorganisation (Adaptation of State Laws) Order, 2020. More laws have been adapted, scrapped and altered ever since in the most arbitrary manner. The word ‘permanent residents’ was purged in the several clauses of various laws. More significantly, the Civil Services Recruitment Act was amended by replacing ‘permanent resident’ with ‘Domicile’, opening jobs in government services to Indian citizens outside the erstwhile state. Automatically, the clauses in all the acts of the J&K constitution, particularly with respect to jobs and land ownership, which required proof of being permanent resident – possession of a PRC – were rendered meaningless. In October 2020, the government repealed or altered 26 land laws with far reaching consequences for J&K’s population. Several other laws have been introduced since and fresh amendments were recently introduced or passed in the parliament.

For the people of Jammu and Kashmir, what was lost was not just the special status of J&K with its emotive appeal but also the privileges and protections it gave to the residents of J&K.

[i] A.G. Noorani, ‘The Kashmir dispute – 1947 to 2012’ – Volume II; Tullika books; 2013

[ii] Rakesh Ankit, The accession of Junagadh, 1947–48: Colonial sovereignty, state violence and post-independence India; Indian Economic & Social history Review; Aug 3, 2016

[iii] Stephen P. Cohen, Shooting for a Century: The India-Pakistan Conundrum; Brookings Institute, 2013

[iv]Article 370: A Short History of Kashmir’s Accession to India, August 6, 2019, EPW (https://www.epw.in/engage/article/article-370-short-history-kashmirs-accession-india)

[v] Constituent Assembly Debates, 17 October 1949 (Noorani: Kashmir Dispute 1947-2012: Volume 2)

[vi] In an interview with Krishan Dev Sethi, one of the members of the Jammu and Kashmir constituent assembly, who was also witness to the debates on Article 306A that later came to be known as Article 370.

[vii] Noorani, Kashmir dispute

Courtesy: Kashmir Times

The post Article 370: Understanding history, legal contexts and why it matters appeared first on SabrangIndia.

Senior Advocate Zaffar Shah led the charge with respect to this issue. He argued that while Jammu and Kashmir had acceded to the Dominion of India, it had not integrated fully into the Union with a merger agreement. This leftover integration was done with the help of Article 370 and the people of Jammu and Kashmir (J & K) were given the power to decide on the levels of integration with the Union of India. He argued that for those matters mentioned in the Instrument of Accession, the President just had to declare that the provisions of Constitution applied to the state after a consultation, and for making law regarding Union or Concurrent list subjects which are not mentioned in the Instrument of Accession, a concurrence of the state government is needed, according to the Constitution. This limitation, he argued, was a way for the state to maintain its constitutional autonomy by restriction of the power of Parliament to make laws that apply to J & K.[1]

Zaffar Shah argued that no other state has this privilege, embedded within the Constitution to have consultations or concurrence with them as a requirement when Parliament wants to make a law on any subject. This, he argued, is the state’s Constitutional Autonomy embedded in Article 370.[2]

The bench remarked that the proposition saying Article 370 has a permanent character in the Constitution is a very difficult proposition. [3] Therefore, Justice Sanjay Kishan Kaul, stated that the question really is about the process of abrogation of Article 370 rather than the power to abrogate it, since the Article itself talks about abrogation. Later, the Bench also remarked that there was no conditional surrender of sovereignty to the dominion of India and that the surrender of sovereignty by Jammu and Kashmir was absolute and complete.[4] The Bench also opined that there are different limitations on Parliament, restricting it from law making on the subjects in the State List and therefore, this is not a special provision to have limitations on powers of Parliament.[5]

Mr. Shah however argued that the difference between other states and Jammu Kashmir is that the latter’s concurrence is needed for making of laws- a constitutional requirement, granting the right of concurrence to the state. There is no such power granted to other states, like that of Jammu and Kashmir’s, to require its concurrence for applying Constitutional Provisions, whether with exceptions and modifications, he argued.[6] He argued that despite the dilution of powers of the state of Jammu and Kashmir, there were still powers that existed, and the Presidential Orders took away that autonomy.[7]

Zafar Shah further argued that the Constitution (Application to Jammu and Kashmir) Order, 1954 provided for the requirement of the Legislature of State for increasing or diminishing the area of the state or altering the name or boundary of the state for a bill to be introduced in Parliament to that effect. He argued that when a bird’s eye view of the 1954 order is taken, it can be construed that that the state continued to have its autonomy in the matters specified in the order.[8]

Solicitor General Tushar Mehta, for the state, argued that internal sovereignty is being confused with autonomy by the Petitioners.[9] He argued that Jammu and Kashmir did not sign a Merger Agreement like many other states, and from the date on which Constitution came into force, the state became an integral part of the Union of India.[10]

External Sovereignty is with the Indian Union while the autonomy of the Federating units of a particular state lies with the state itself, with no state being exception. The Bench remarked that the Petitioners were arguing that there was a “modicum of sovereignty” which was exercised by the then Maharaja and not accession to the Union.[11] The Solicitor argued that the Maharaja could not have created a Constituent Assembly that is empowered to create a document having the same sanctity and sovereignty as the Constitution itself.[12]

(The author is a legal researcher with the organisation)

[1] Page 7, Day 5 Transcript, August 10, 2023, Article 370 Hearing, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Argument-Transcript-August-10th-2023.pdf

[2] Page 8, Day 5 Transcript, August 10, 2023, Article 370 Hearing, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Argument-Transcript-August-10th-2023.pdf

[3] Page 12, Day 5 Transcript, August 10, 2023, Article 370 Hearing, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Argument-Transcript-August-10th-2023.pdf

[4] Page 17, Day 5 Transcript, August 10, 2023, Article 370 Hearing, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Argument-Transcript-August-10th-2023.pdf

[5] Page 19, Day 5 Transcript, August 10, 2023, Article 370 Hearing, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Argument-Transcript-August-10th-2023.pdf

[6] Page 22, Day 5 Transcript, August 10, 2023, Article 370 Hearing, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Argument-Transcript-August-10th-2023.pdf

[7] Page 28, Day 5 Transcript, August 10, 2023, Article 370 Hearing, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Argument-Transcript-August-10th-2023.pdf

[8] Page 34, Day 5 Transcript, August 10, 2023, Article 370 Hearing, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Argument-Transcript-August-10th-2023.pdf

[9] Page 52, Day 10 Transcript, August 24, 2023, Article 370 Hearing, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-24th-August.pdf

[10] Page 37, Day 10 Transcript, August 24, 2023, Article 370 Hearing, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-24th-August.pdf

[11] Page 52, Day 10 Transcript, August 24, 2023, Article 370 Hearing, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-24th-August.pdf

[12] Page 54, Day 10 Transcript, August 24, 2023, Article 370 Hearing, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-24th-August.pdf

Related:

‘Reorganisation’ of J & K into two union territories, constitutional? Part III of the analysis in the 370 case

Article 370, permanent or temporary? Part II of arguments in Supreme Court

Is Article 367 a tool for understanding or amending the Constitution? Abrogation of Article 370, Part 1

The post According to Article 370, what does “autonomy” mean for Jammu and Kashmir? appeared first on SabrangIndia.

Provisions of the Constitution

Part I of the Constitution deals with the Union and Its Territory. Article 1 declares that India, that is Bharat, shall be a Union of States. Article 2 states that the Parliament may admit new states, by law, on such conditions as it thinks fit. Article 3 deals with the ‘formation of new states and alteration of areas, boundaries or names of existing states’. Article 3 becomes important in this context since it allows the Parliament to form a new state by separation of territory from any state or by uniting two or more states or parts of states, or by uniting any territory to a part of any state, or increasing the area of any state or diminishing the area of any state, or altering the boundaries of any state or altering the name of any state.

First proviso to this article states that a bill introduced for the purpose of this article in the parliament should/can only be done after the bill has been referred by the President to the legislature of the state for expressing its views. It essentially means that before the parliament decides about changing the territory of the state are making any alterations, the legislature of the state should be given an opportunity to express its views. There are two explanations to this article.

Explanation 1 states that the referral to the legislature is not required in case of a Union Territory; Parliament can do to Union Territories all those things that it can do to States, as stated above. This means, the word State in the power of Parliament to ‘form a new State by separation of territory from any State or by uniting two or more State’ could be read as ‘form a new Union Territory by Separation of territory from any State or by uniting two or more Union Territories.’

The explanation two states that Parliament has the power to form a new State or Union Territory by uniting any part of the state or Union Territory to any other State or Union Territory. Essentially, Parliament can change/alter the territory of the States and Union territories, but for States, it will have to obtain the views from the legislature of the state.

Article 4 states that if there is a law made under Article 2 or 3 i.e., if India adds a State to its territory or if it changes the territory of the States, it should make the necessary changes in First and Fourth Schedules-the former dealing with territorial extent of States and Union Territories and the latter with the number of seats from the state in the Rajya Sabha. Article 4 also states that the law made under Articles 2&3, will not be considered as an amendment under Article 368.

What does this mean? These laws under Article 2&3 will not have to be passed by a Special Majority of the houses of Parliament.

Why is this Article important?

A December 2018 proclamation was issued by the President announcing suspension of the proviso to Article 3 in the state of Jammu Kashmir; the president had exercised his powers under Article 356. Article 356(1)(b) states that the President, by his proclamation can make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State.

The 2018 proclamation suspended the proviso to Article 3 which requires the referral of the territory amendment/reorganisation bill to the legislature by the President. After abrogation of Article 370 on August 6, 2019- the Parliament passed the Jammu and Kashmir Reorganisation Act, 2019, resulting in the creation of Jammu & Kashmir, and Ladakh as separate Union Territories, without having to refer it to the Legislature of the state since the proviso to Article 3 was in suspension.

Arguments of the petitioners

Senior Advocate Rajeev Dhavan argued that the 2018 order was not supposed to be done under Article 356. When the bench asked if there are any restriction as to what could be done by the President under Article 356, he answered that the proclamation must relate to the pre-conditions specified under Article 356 and to whatever is required to materialise Article 356. [1] He also took the line that Articles 3 & 4 of the Constitution cannot be invoked during a President’s rule since the articles require participation of State Legislature performing a non-legislative function, which is not the function of Parliament even under Article 356.

This means that, if Jammu Kashmir legislature was to express its views on reorganisation of the state, it would not be making a law- a legislative function. It would be giving its views, a non-legislative function representing the view of the people in the state. However, since the state was under President’s rule, the legislature’s views had no possibility of being expressed, thus depriving the people of the opportunity to express their views. Therefore, he argued that restrictions should be there on the exercise of Article 356 and Articles 3 & 4. The Bench remarked that such proposition would be broad and that it would make it harder for Centre to intervene in some necessary scenarios.[2]

Dhawan also argued that there are different provisions for different states. Taking example of states such as Chhattisgarh, Jharkhand, Odisha and Madhhya Pradesh, he argued that the requirement to have a Tribal Welfare Minister under Article 164 cannot be taken away under Article 356.[3]

Senior Advocate Dushyant Dave argued that Article 356 was not to be used to suspend the proviso to Article 3 which would have an effect of amending it to not apply to Jammu and Kashmir. He relied on the Berubari Union case to argue that the process should have been via Article 368 rather than Article 357.[4]

Senior Advocate Shekhar Naphade argued that Articles 1, 2 & 3 will have to be read together, and a clear limitation is placed in Article 3 that a state’s status cannot be taken away. Article 356 can be used for bringing normalcy to a state where constitutional machinery has broken down, but it cannot be used to abolish the state as an entity, altogether, he argued.[5]

He also argued that it should be absurd for the Governor to suggest the President uses Article 356 and suspend constitutional provisions from applying to the State of J&K when the legislative assembly has already been dissolved and the Governor- appointed by the President himself- has assumed powers. He also cited the judgement in the case of KN Rajagopal vs. Karunanidhi which states that a failure of constitutional machinery cannot be viewed under Article 356 when the legislative assembly is dissolved. Essentially, he stated that if Governor had already assumed the powers, on what basis did the President issue his December 2018 proclamation under Article 356?; and even if the Article 356 proclamation is issued, it does not have the power to suspend Constitutional Provisions that are unrelated to bringing normalcy to the state.[6]

Senior Advocate Dinesh Dviwedi argued that, since Parliament can make a law for any territory other than the territory of a State and on any subject other than those mentioned in the State list under article 246(4), the taking away of Jammu and Kashmir status as a State results in parliament being the sole legislature for the State. The dual polity Jammu and Kashmir is this destroyed by the reorganization act, he argued.[7]

Senior Advocate CU Singh also argued on similar lines with respect the limitations on President’s power with respect to Article 356, to suspend the proviso to Article 3. He argued that the 2018 Presidential proclamation was void. He also argued that States were never meant to be converted into Union Territories as a whole but the Union territories were being converted into States as they became stable political units. He argued that the reorganisation was not permissible under Article 3. He argued that the conversion of State into Union Territory violates basic structure, and it cannot even be done under Article 368 but if it all it could be done, it could be only under Article 368. [8]

Arguments by the State

Solicitor General Tushar Mehta argued that the federal system in the country has been accepted as one that leans towards a unitary feature and that there are several considerations for Jammu and Kashmir which has very strategic importance, its nature of being a border state and with the history of terrorism, infiltration, outside influence etc. When the Bench remarked that an argument based on border states is a problem and that we have many states on the border, the solicitor argued that there is the history of the state which should be taken into consideration regarding the number of deaths of security forces and the number of attacks, and the paralysing of schools, hospitals, banks, business houses etc. He cited the remarks by Minister in the Parliament saying that the government does not have a problem in putting things back as they were once normalcy is restored in the region.[9]

He also relied on State of West Bengal vs. Union of India and Babulal Parate vs. State of Bombay to argue that the Parliament has supreme power to carve out Union Territories from states and the current government has carved out the UTs of Jammu and Kashmir, and Ladakh from the state of Jammu and Kashmir, albeit for a temporary period.[10]

When the bench remarked that the suspension of proviso to Article 3 led to representation of the state getting represented by the will of people of the larger country, he relied on the case of SR Bommai vs Union of India to argue that the Parliament could change the territory of the states without their concurrence and that the proviso only enables the expression of the views of the state which are left to the Parliament to later decide on. This scheme, he argued, makes Parliament paramount in the constitution of States and it is a different system from the system established in the USA. Provided there is a broader compliance- namely the entire nation since the issue affects the entire nation according to him, Parliament could make the decision, he argued.[11] He then argued, on the basis of the Reorganisation Act as to why the status of the Jammu Kashmir, despite being a UT, has not considerably reduced as many other privileges of a state were still given including the provision for a legislative assembly.[12]

In Essence

Petitioners argued that a state cannot have its statehood taken away as Article 3 does not allow such procedure. When the requirement for taking views of a state before it is reorganised was in suspension that too under President’s powers, the state cannot be reorganised.

Respondents argued that Parliament have absolute power to constitute and reconstitute states. Although that might not be done, this is a special case which would not arise again since there is no state like J&K. This reorganisation does not aim to let J&K be UT forever and has been done for progress.

(The author is a legal researcher with the organisation)

(To be concluded –Part 4 to follow)

[1] Page 10, Day 6 Transcript, August 16, 2023, Article 370 Hearings, Supreme Court;

https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-16th-August.pdf

[2] Page 12, Day 6 Transcript, August 16, 2023, Article 370 Hearings, Supreme Court;

https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-16th-August.pdf

[3] Page 19, Day 6 Transcript, August 16, 2023, Article 370 Hearings, Supreme Court;

https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-16th-August.pdf

[4] Page 5, Day 7 Transcript, August 17, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-17th-August.pdf

[5] Page 61, Day 7 Transcript, August 17, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-17th-August.pdf

[6] Page 59, Day 7 Transcript, August 17, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-17th-August.pdf

[7] Page 66, Day 7 Transcript, August 17, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-17th-August.pdf

[8] Page 58, Day 8 Transcript, August 22, 2023, Article 370 Hearings, Supreme Court;

https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-22nd-August.pdf

[9] Page 41, Day 12 Transcript, August 29, 2023, Article 370 Hearings, Supreme Court;

https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-29th-August-2023.pdf

[10] Page 58, Day 12 Transcript, August 29, 2023, Article 370 Hearings, Supreme Court;

https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-29th-August-2023.pdf

[11] Page 61, Day 12 Transcript, August 29, 2023, Article 370 Hearings, Supreme Court;

https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-29th-August-2023.pdf

[12] Page 65, Day 12 Transcript, August 29, 2023, Article 370 Hearings, Supreme Court;

https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-29th-August-2023.pdf

Related:

Article 370, permanent or temporary? Part II of arguments in Supreme Court

Is Article 367 a tool for understanding or amending the Constitution? Abrogation of Article 370, Part 1

The post ‘Reorganisation’ of J & K into two union territories, constitutional? Part III of the analysis in the 370 case appeared first on SabrangIndia.

This part deals with arguments over the nature of Article 370 i.e., whether it is/was a permanent or temporary provision and whether the President could abrogate the article without the concurrence of the Constituent Assembly or not.

Petitioners’ arguments:

Senior Advocate Kapil Sibal argued that Article 370 was temporary from 1951 to 1957, when there was a Constituent Assembly that could give its recommendation to the President under Article 370(3) to abrogate it. After the Constituent Assembly came to an end, the temporary nature of the article, he argued, was turned into a permanent one.

It was also argued that the word ‘temporary’ in the heading of Article 370 “Temporary provisions with respect to the State of Jammu and Kashmir” is a marginal note and therefore should not control the reading of the text, as held by the Supreme Court in the case of Kesavananda Bharati vs. State of Kerala.[1]

The bench stated that Article 370 is part of part 21 of the Constitution which deals with temporary and transitional provisions, presenting the question again, on the temporary nature of the article. Mr. Sibal argued that when article 370 was inserted into the Constitution, it could be nothing but a temporary provision since the Constituent Assembly of J&K had to decide on it and that it is an independent provision due to which concepts outside of the Article 370 cannot be incorporated to read it.[2]

Arguing on whether the President could take the necessary recommendation under Article 370(3) from the State Legislature instead of the Constituent Assembly as was stated in the Constitution before the Constitution Orders in 2019, or not – Mr. Sibal argued that the Legislature and a Constituent Assembly are completely different bodies and therefore, cannot be equated.

While the Constituent Assemblies only intent is to arrive at a workable Constitution starting from a clean slate that is not the case for a Legislature or a Parliament. Therefore, the President could not abrogate the article since there is no Constituent Assembly today. And the way the Union has crafted its moves, i.e., to amend the Article 370 by replace(ing) Constituent Assembly with the word Legislative Assembly would not stand, as they are not the same institutions.[3]

Senior Advocate Gopal Subramanium, arguing after Mr. Sibal, argued that the Jammu and Kashmir (J & K) Constituent Assembly did not cease to exist without giving its decision on the Abrogation of Article 370. He argued that the J&K Constituent Assembly resolved in the affirmative that Articles 1 and 370 must continue. [4] He also argued that the J&K Constitution includes a provision under Article 147 stating that no Bill or amendment seeking to make any change in the provisions of the Constitution of India as applicable, in relation to the State (J & K), shall be introduced or moved in either House of the Legislature- which meant that the power to amend the provisions related to Indian Constitution was not given to the Legislature. Mr. Subramanium argued that any exercise of the nature of Constitution orders 272 and 273 should have been the consequence of a bilateral process as opposed to the Union’s unilateral process that was actually followed. The flexibility of Article 370 was subject to the bilateral process that is to be followed under the Article, he argued.[5] It is noteworthy that while Mr. Sibal argued that Constituent Assembly and Legislature cannot be equated, Mr. Gopal Subramanium hinted that Legislature could have been a part of the process of abrogation. Senior Advocate Dushyant Dave argued that the Article 370 might be temporary but from the perspective of Jammu and Kashmir and not from the perspective of Indian Dominion or Indian Republic since the former was given the opportunity to decide on the article. [6]Petitioners who argued on the issue, were in unison in their arguments to the extent that the Article 370 had become a permanent feature of the Constitution after the J&K Constituent assembly ceased to exist.

Respondent’s arguments

Attorney General R. Venkataramani argued that the recommendation from the Constituent Assembly, as stated in Article 370(3) is impossible to get because the Constituent assembly has ceased to exist after 1957. This impossibility, he argued, should not take away the President’s authority under Clause 3 which still exists even after the Constituent Assembly has ceased to exist.

Venkatramani also stated that the Article 370 was (meant) to be terminated at some point of time and that it happened now; such termination had to be brought in suitable way. He also argued that Legislative Assembly is an equally competent body that could perform a non-legislative function as the Constituent Assembly would have performed. It was also his contention that since there is nothing that forbids the President to take stock of the Article 370 and his exercise over a period of time, it is open for the President to take stock of exercises undertaken under Article 370 and other consideration “which loom large before the Nation, particularly the State of J&K.”[7]

Since the recommendatory power of the Constituent Assembly was a non-legislative function, and since the Article 356(1)(b) states that the President can declare the powers of Legislature of the State shall be exercisable by or under the authority of the Parliament- The President has taken the route  to closely approximate the non-legislative function of the Constituent Assembly by substituting it with the Legislative Assembly. [8]

Solicitor General Tushar Mehta argued that the Article 370 was a temporary provision that was set to be there until the disturbances in the state of J&K were gone and until the situation normalised.[9] He also argued that the Article has been treated as temporary as opposed to what the petitioners argued.[10] He argued that there is no necessity to look beyond the categories of Part XXI, which are ‘temporary, transitional and special. He stated, regarding the proviso to Article 370(3) which mandates a recommendation from the Constituent Assembly of J&K for the President to abrogate Article 370, that even if the proviso does not serve any practical purpose after the Constituent Assembly has ceased to exist- the substantive provision empowering the President to abrogate the Article remains; or else, he argued that the President of India’s decision is dependent on a different body that takes or does not take a decision, which cannot be the reading according to him. He also argued that the role of Constituent Assembly was recommendatory which meant that the President could still abrogate the article even if the recommendation was otherwise. The Chief Justice responded to this line of argument saying that as long as the body was a Constituent Assembly, it was not recommendatory and an affirmative recommendation from the J&K Constituent Assembly would have been essential.[11]

In essence

The petitioners argued that Article 370 was temporary until the only body which could recommend its abrogation being the J&K Constituent Assembly was in existence and once the body ceased to exist, the Article has become permanent. The Legislative Assembly could not take on the positing of Constituent Assembly, according to some petitioners since the former is a body with different functions as opposed to the latter in terms of what it represents.

The Respondents argued that the provision exists in Part XXI which means that it could be abrogated and the way it was abrogated – by replacing Constituent Assembly with a Legislative Assembly, was the most suitable and Constitutional way possible, since the Constituent Assembly does not exist anymore.

(The author is a legal researcher with the organisation)

(To be concluded –Part 3 to follow)

[1] Page 10, Day 2 Transcript, August 3, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Arguments-Transcript-August-3-2023.pdf

[2] Page 66, Day 1 Transcript, August 1, 2023,  Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Arguments-Transcript-August-2-2023.pdf

[3] Page 41, Day 2 Transcript, , August 3, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Arguments-Transcript-August-3-2023.pdf

[4] Page 6, Day 4 Transcript, August 9, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Argument-Transcript-August-9th-2023.pdf

[5] Page 30, Day 4 Transcript, August 9, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Argument-Transcript-August-9th-2023.pdf

[6] Page 7, Day 7 Transcript, August 17, 2023, Article 370 Hearings, Supreme Court; file:///C:/Users/bteja/OneDrive/Desktop/Transcripts/7-Seventh%20Day-August-10th-2023.pdf

[7] Page 34, Day 13 Transcript, August 31, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-31st-August-2023.pdf

[8] Page 18, Day 13 Transcript, August 31, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-31st-August-2023.pdf

[9] Page 46, Day 10 Transcript, August 24, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-24th-August.pdf

[10] Page 39, Day 11 Transcript, August 28, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-28th-August-2023.pdf

[11] Page 34, Day 12 Transcript, August 29, 2023, Article 370 Hearings, Supreme Court; https://www.scobserver.in/wp-content/uploads/2023/07/Transcript-29th-August-2023.pdf

Also Read

Is Article 367 a tool for understanding or amending the Constitution? Abrogation of Article 370, Part 1

‘Reorganisation’ of J & K into two union territories, constitutional? Part III of the analysis in the 370 case

The post Article 370, permanent or temporary? Part II of arguments in Supreme Court appeared first on SabrangIndia.

Before we go into the arguments made in the Supreme Court, it is important to understand the brief background of Article 370.

What was the status before 2019?

Article 370 of the Indian Constitution (before August 2019) had conditions regarding the state of Jammu and Kashmir (J & K) and the reach of Parliament in making laws for the state. The Article stated that India would not make laws applicable to Jammu & Kashmir except under the subjects of Defence, Communications and Foreign Affairs. If the Parliament wanted to make laws on other subjects, it could only do so with the ‘concurrence of government of the state.’

Additionally, the Article also stated that only Article 1-declaring India as a Union of States and the Article 370 are applicable to the state of Jammu and Kashmir. The President could pass an executive order applying provisions of the Indian Constitution to J&K. To entrench this special status, Art.370(3) stated that the special status of J&K could not be amended or repealed unless the Constituent Assembly of J&K recommended it.

What happened in August 2019?

The President issued an important order- the Constitution (Application to Jammu and Kashmir) Order, 2019, which made a key change. The order added a new clause to Article 367 which dealt with an interpretation of the Constitution. The new clause exclusively was in relation to the state of J&K and it made a new addition. It stated that the term ‘Constituent Assembly’ in Article 370 should be construed as Legislative Assembly.

Then, a second Constitutional Order was passed with the powers granted under the new Article 370(3). While the repeal or amendment of the earlier (read original) Article 370 could not be carried until the Constituent Assembly recommended it, the C.O. 272 (2019) made it possible for such amendment or repeal to be effectuate under a recommendation of the Legislative Assembly. Since the state was under President’s rule, with powers of both the Legislative Assembly and the Governor being vested in Parliament and the President respectively, the Parliament could recommend the President to amend or repeal the Article.

After this order was passed, a resolution was passed by both the houses of Parliament recommending that Article 370 be amended.

What would the new Article contain? The amended article states that all provisions of the Constitution shall apply to the state of J&K. Following this resolution, the President passed the constitutional order, adhering to the recommendation. Thus, the special status provided to the state of Jammu and Kashmir was removed.

Thereafter, the Jammu and Kashmir Reorganisation Act, 2019 was passed by the Parliament, allowing the state to be divided into two union territories-Jammu and Kashmir, and Ladakh.

Various petitions have been filed in the Supreme Court, questioning various parts of the process in which the article was abrogated.

What happened in August 2023?

A five-judge bench of the Supreme Court comprising Chief Justice D.Y.Chandrachud, Justices S.K.Kaul, Sanjiv Khanna, B.R.Gavai and Surya Kant heard the petitions during August 2-17, 2023. The court has reserved its judgement.

There are different lines of arguments undertaken by various counsel for the petitioners. They will be covered as the series progresses.

This part will deal with the argument that questions the amendment to Article 367, allowing the interpretation of the term ‘Constituent assembly’ as the ‘legislative assembly’ in Article 370(3). 

Whether Art. 367, the interpretative clause, can be used to effectively amend the Constitution of India? 

Senior Advocate Kapil Sibal argued that the Constitutional Order 272 creating the new clause to Article 367, created a Constitutional myth and acted on it.

An explanation to Article 370(1)(b) stated that the ‘Government of the State’ means the ‘person’ for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Governor of Jammu and Kashmir, acting on the advice of Council of Ministers of the State for the time being in office.

Essentially, the Constitution stated that a person recommended by the legislature of the J&K and recognised by the President shall be the Governor acting under the advice of Council of ministers. This was later changed by doing away with the recommendation of Legislature, in 1965. This meant that the President directly appointed the governor. Why is this person important? This person’s concurrence shall be required for the President’s order to specify matters from Union or Concurrent Lists on which the Parliament could legislate upon vis-à-vis the state of J&K.

With the amendment of Article 367, this person i.e., governor acting under the advice of council of ministers was to be construed as Governor of the J&K. And the term ‘Government of the State’ was to be construed as the Governor of J&K acting on the advice of Council of Ministers.

It was argued that this was an executive order trying to create Governor and Council of ministers in a state where there are no council of ministers.

Mr. Sibal argued that the President’s order does not interpret the term ‘Constituent assembly’ in Article 370 but amends it.

In essence, the argument was the President, and the Parliament took over the powers of the Governor and state legislature after President’s rule was declared in the state under Article 356; but this power that the President and Parliament have acquired under Article 356 cannot be used to amend the Constitution.

How was the power under Article 356 used to amend the Constitution?

The Parliament, acting with (taking over) the powers of the legislature, went on to recommend to the President that the Article be abrogated.

He argued that Article 367 is an interpretative clause and not a clause to substitute definitions and therefore, to substitute a whole definition of Constituent Assembly into Legislative assembly, is outside the power of Article 367.

Senior Advocate Gopal Subramanium too, took a similar line of argument with respect to whether an article on interpretation i.e., Article 367 be used to amend the Constitution, in essence. The modification carved out for the application of entire constitution, he argued, was change in a provision of interpretation.

He also argued that if ‘Constituent Assembly’ and ‘Legislative Assembly’ of a state are by their very nature different bodies, an interpretation clause cannot substitute former with the latter.

Solicitor General Tushar Mehta argued, in response, that Article 367 was used before by the President to replace the words Sadar-i-Riyasat with Governor in the Constitution, in the case of  Mohd. Maqbool Damnoo v State Of J&K . Since there has to be a way to abrogate the temporary provision of Article 370, the way via Article 367 is a constitutional way. He also argued that when the Constituent Assembly is dissolved, only the proviso which requires the recommendation of the Constituent Assembly becomes powerless and not the President’s power to amend or repeal Article 370. Therefore, the Article 367 mechanism of using the Article on interpretation was taken up by the President.

In Essence:

Petitioners: Interpretative Article cannot be used to substitute a word with another very different word, having an effect of amending the Constitution itself. Interpretation is merely an aid to understand the original intent.

Respondents: Given the temporary nature of Article 370, using the interpretative clause to breathe life into the proviso which has been dormant due to the dissolution of Constituent Assembly is constitutional.

(The author is a legal researcher with the organisation)

(To be continued– In the next part, the arguments on permanent/temporary nature of the Article 370 and whether the President can abrogate Article 370 without the concurrence of the Constituent Assembly shall be discussed)

Also Read

Article 370, permanent or temporary? Part II of arguments in Supreme Court

‘Reorganisation’ of J & K into two union territories, constitutional? Part III of the analysis in the 370 case

The post Is Article 367 a tool for understanding or amending the Constitution? Abrogation of Article 370, Part 1 appeared first on SabrangIndia.

Air Vice Marshal Kapil Kak (retd.), a former deputy director at the Centre for Air Power Studies, is one of the petitioners who have challenged, in the Supreme Court, the abrogation of Article 370. Kak, a member of the Forum for Human Rights in Jammu and Kashmir, recently spoke to NewsClick over email. In its latest report, ‘Three Years as a Union Territory: Human Rights in J&K’, the forum has criticised the central government’s heavy-handed tactics in the former state. He sees the recent call by Sanjay Tickoo, president of the Kashmiri Pandit Sangharsh Community, for Pandits to migrate out of the Valley as a “strident indictment” of the central government’s policies towards the region. Edited excerpts:

The government claims normalcy has returned to the Union Territory of Jammu and Kashmir (J&K) following the abrogation of Article 370, but your latest report records a very different situation. Could you highlight why this variance exists?

The claim of “return to normalcy” needs time-metric co-relation. In the immediate aftermath of reading down Article 370, nothing was normal: the incarceration of the entire political leadership, communications lockdown, a civil disobedience movement, shut down of business and commercial establishments, major dislocation of healthcare, closure of the education sector, stoppage of public transport, et cetera. Normalcy in these sectors has largely returned to the pre-5 August 2019 situation.

But on the flip side, a large number of political persons taken into preventive detention remain in jail, in many cases outside the former state. Civilian fatalities due to militancy remain inordinately high. Anti-terror and sedition laws continue to be disproportionately employed against political leaders and journalists. Clampdown on the freedom of the press through police harassment, intimidation and arbitrary detention reportedly persists. As [former chief minister] Mehbooba Mufti aptly put it, “Every resident of J&K has become cannon fodder in Delhi’s quest for manufactured normalcy.”

How would you describe the present human rights situation in the Valley, and how do people living there view the situation?

As we aver in our report, people view the denial of civil rights (freedom of speech and assembly, right to peaceful protest, the right to regular free and fair elections and a right to free press) as the choking of democracy, end of politics, death of expectations and unambiguous signalling that the Centre would no longer listen to Kashmiris.

The moderate Hurriyat leader, Mirwaiz Umar Farooq, has not been allowed to deliver his weekly sermons at the iconic Jama Masjid for all 156 Fridays in the last three years, during which he has remained under house arrest.

Journalism faces a very adverse ecosystem, and media practitioners have an overwhelming sense of fear. People no longer view them as the fourth pillar of democracy. People report that the crackdown on the media and civil society groups continues unabated, including through draconian counter-terrorism and other laws, like the Prevention of Money Laundering Act, 2003, Public Safety Act, 1978, and Unlawful Activities Prevention Act, 1967. The Union Territory government’s New Media Policy, 2020, has made censoring news easier.

Your team also interviewed members of the Kashmiri Pandit community in Jammu and the Valley. Could you talk about the film Kashmir Files and how it has affected the relationship between the Kashmiri Muslims and the Kashmiri Pandits, which was disturbed after the 1990s?

Our report addresses this issue in great detail. The Bollywood film The Kashmir Files is based on the testimonials and stories of the hapless Pandits who got clawed out of their millennia-long geo-cultural mosaic of peaceful coexistence in a sacred geography. This story needed to be told. But on the worrisome flip side, the film seeks to slander, vilify and delegitimise the Valley’s majority community’s own pain and suffering of over three decades during which tens of thousands of its youth were killed.

Clearly, the victimhood of Pandits has been appropriated as a crude political-ideological and commercial weapon for the cause of majoritarianism. The exultation and celebration of the film by Pandit migrants in the rest of India sullied the sense of coexistence in Kashmir, which was perhaps on its way back but appears to have got disturbed yet again.

Roughly 4,500 Kashmiri Pandits were part of former prime minister Manmohan Singh’s employment package of 2010 and returned to the Valley. Relaunched by the present regime, it also promises safe homes for Kashmiri Pandits who return. But many have decided to return to Jammu. Can you explain this scenario?

We must underscore that the 4,000 Pandits who never migrated out of the Valley have lived in nearly a hundred locations over three decades, invariably under the watchful eye of their majority brethren. For 18 years since Nadigram [killing of Kashmiri Pandits in 2003], no Pandit was targeted. But the killing in October 2021 of ML Bindroo, a popular medical store owner, did raise fears of insecurity and vulnerability among them. The impact of the killing of Prime Minister’s package employee Rahul Pandita was far more on such workers. Nearly fifty per cent of them have stopped work and moved to the relative safety of Jammu.

The fatal shooting of Sunil Kumar Bhat, a Pandit orchardist, on 16 March and the severe bullet injuries inflicted on his relative Pitambar Nath Bhat has again sent shockwaves among the microscopic community. In a strident indictment of the government, Sanjay Tickoo, president of the Kashmiri Pandit Sangharsh Community, which never migrated, said that while tourists and Amarnath yatris were safe, non-local Muslims and Kashmiri Pandits were [becoming] the targets of terrorists. He called upon the Pandits to migrate out of the Valley. It remains to be seen how such an appeal would resonate and pan out with the community he represents.

A respondent in the Vessu camp in Kulgam has said that 60 per cent of camp inhabitants had left for Jammu.

Perhaps more people have moved out of the Vessu migrant location, but the overall figure for all camps put together remains about 40-50 per cent.

The Modi government has often highlighted how it facilitates Kashmiri Pandits’ return. But from the 6,000 homes to be built for them, only 1,025 have been constructed so far.

Yes, it was so encouraging to know that the political dispensation that came to power in 2014 made the return of Kashmiri Pandits the central plank of its J&K policy. But to paraphrase the British poet, TS Eliot, between the idea and the reality fell a shadow. The 2010 policy on providing government jobs to returning Pandits was repackaged in 2015 to include the construction of secure and gated temporary accommodation for 6,000 employees. But as you say, only 1,025 units have been constructed so far—a cause of enormous disappointment for Pandits.

Your report highlights the tremendous odds that 3,900 panchayat members in J&K face. For one, a number of them have been shot by militants. Do we know how many such killings have occurred?

Yes, the 3,900 panchayat members working at the grass-roots level in a militancy-affected region do face daunting challenges. Twenty-six sarpanches and panches were killed by militants during 2012-22.

Panchayat members had complained to your forum that their movements were severely inhibited after these attacks, prohibiting their interaction with the public.

Yes, some panchayat members do complain of restrictions. It appears that members aligned with the ruling party at the Centre feel a greater sense of vulnerability. On the other hand, the impression one gathers during interactions with their organisational leaders is that members are going about their jobs as best as they can in the prevailing security situation.

Many complain they have no power to work on the ground. Others complain the bureaucracy is marginalising them. How do ordinary people perceive these elected representatives?

Yes, the widespread feeling among panchayat members is that they have not been empowered as promised. The all-powerful bureaucracy, especially when the state and then the Union Territory have been under direct central rule for over four years, is loath to delegate powers to the panchayats, whose members understandably feel marginalised.

Many panches and sarpanches received no training, and people see them as novices or rubber stamps. Has this fuelled cynicism towards them in public?

Yes, it is a fact that sarpanches and panches have received no worthwhile training other than basic familiarity with documentation and rules. The promise to take some of them on tour to selected places in the rest of India where panchayats function efficiently has also not fructified. But given the overarching situation and circumstances in which the panches operate, those who elected them are not too cynical.

Is it that the central government wanted to use the panchayat elections to devalue and bypass the political parties in the erstwhile state? Did the ‘experiment’ succeed?

People in the Valley term these efforts as ‘Mungerilal ke sapnay (dreams of Mungerilal—an Indo-Gangetic proverb) which have reached nowhere. After all, nationwide, three distinct levels of governance exist: the panchayats, the district or block level administrations, and then the state or Union Territory-level legislatures. It would be futile to imagine one can supplant the other!

Your report refers to a real estate summit held in Jammu in 2021, which was to be followed by another one in Srinagar. [See background and developments in land-related issues in Kashmir here and here.] What feedback did you receive about it?

Yes, a real estate summit, the first of its kind, was held last year in Jammu. But due to a lack of clarity on the government’s policy on land use and circle rates, real estate players appear chary of making investments. Construction of factories or buildings on khud land (where water emerges), permitted earlier, is now disallowed. This imposes another constraint. It appears the Jammu Chamber of Commerce and Industry has sought clarifications from the government on these issues, but the forward movement has been slow, to the utter disappointment of the Jammu business community. Another real estate summit is scheduled in Srinagar in October 2022. It remains to be seen what issues would emanate from that one.

(Rashme Sehgal is a freelance journalist.)

Courtesy: Newsclick

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