K B Jandial
While the Indian Constitution’s most controversial Article 370 is constitutionally ‘dead’ and gone, politics on it would remain alive for many years. By unanimously upholding President’s action to abrogate Article 370 on 5th August 2019, the Supreme Court has brought legal closure to this contentious constitutional provision on 11th December, 2023.
Even though the Chief Justice of India Dr D Y Chandrachud has said in his recent interview that the people have a right of speech and expression and as such, they are entitled to critique, criticise, appreciate the judgment, but still, all debates, pro and counter arguments on it, are a futile exercise.
The issue of Article 370 would be a favourite talking point for politicians, especially in the ensuing Lok Sabha poll. Despite its legal closure, this is a fruitful issue for both pro and anti ‘abrogation’ of Article 370 parties to whip up public sentiments for electoral gains. Kashmir centric political parties can make its restoration as major part of their manifestos to keep the issue alive. The academicians, researchers, and columnists would also keep it alive by frequently referring to the 352-page main judgment authored by the CJI, besides two other concurring judgments authored separately by Justice Sanjay Kishan Koul (125 pages) and Justice Sanjiv Khanna (3pages).

Straight Talk

In this historic judgment, the Apex Court has unanimously held that Article was a temporary provision. Analysing the historical facts and war situation in the State when the Constitution was being framed, the Bench concluded that “It can be garnered from the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution that it is a temporary provision.” This clearly paved the way for its modification or abrogation by adopting procedure provided in the Article 370 itself.
Interestingly, the Supreme Court struck down President’s action in exercise of power under Article 370 (3) substituting the non-existent “Constituent Assembly of the State” in proviso to Article 370 (3) with “Legislative Assembly of the State” using Article 367 (relating to interpretation), as ultra vires. But, however, it upheld the President’s power to abrogate Article 370 independent of recommendation of the Constituent Assembly of the State. The Apex Court held that the President has ‘amended’ Article 370 through Article 367, without following the procedure prescribed to ‘modify’ Article 370. “An interpretation clause cannot be used to bypass the procedure laid down for amendment”, the Court held.
On 5th August, 2019, the President, using power vested in him by Article 370 (3) issued Constitutional Order (para 2 of CO 272) adding a clause in Article 367 saying that “Constituent Assembly of the State” is substituted by word “Legislative Assembly of the State”. Paragraph 2 of CO 272 couched the amendment to Article 370 in the language of an amendment or modification to Article 367 but its true import was to amend Article 370 which is not constitutionally valid proposition. J&K was under the President Rule and the powers of the J&K Legislative Assembly was in the Parliament. The recommendation of the Constituent Assembly of the State, as mentioned in the proviso to Article 370 (3), was considered to be crucial in the process to abrogate Article 370. Many legal luminaries had then described the Govt of India action as ‘constitutional innovation.’ But it was not to be so.
Notwithstanding striking down this action, the Supreme Court held “the President had the power to issue a notification declaring that Article 370(3) ceases to operate without the recommendation of the Constituent Assembly”. This constitutional view of the top court finally negated earlier popular legal perception that the President’s power on this critical part of Article 370 is dependent on recommendation of the Constituent Assembly and after its dissolution in 1956, Article 370 had impliedlybecome a permanent part of the Constitution. Article 370 was held to be temporary.
The Supreme Court has also made an interesting observation while upholding the CO 273 that the President’s continuous exercise of power under Article 370(1) (d) “indicates that the gradual process of constitutional integration was ongoing. The declaration issued by the President under Article 370(3) is a culmination of the process of integration and as such is a valid exercise of power.” So, the Presidential orders (COs) issued from time to time was a process of constitutional integration with J&K. Politically also, this integration of J&K with the Union of India was completed with the constitutional changes effected in Article 370 on 5th August 2019.
The Court has also held that the President did not have to secure the concurrence of the Government of the State or Union Government acting on behalf of the State Government under the proviso to Article 370(1)(d) while applying all the provisions of the Constitution to Jammu and Kashmir because such an exercise of power has the same effect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the State Government was not required.
Another important fact that has been authentically brought to the public domain is the status of the Constitution of Jammu & Kashmir. It may be recalled that the author of the Straight Talk had earlier written in one of the pieces after abrogation of Article 370 that Jammu & Kashmir Constitution had not been repealed by the Parliament, J&K Reorganisation Act of 2019 or by any other constitutional authority and as such, is in existence though inoperative as all provisions of the Constitution of India stood applicable to J&K without “exception and modification”.Moreover, the new text of Article 370 also mentioned the Constitution of Jammu & Kashmir Constitution which is as under:
“370. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmiror any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.”
While analysing the provisions of both Constitutions, the Court concluded that Jammu and Kashmir State did not possess sovereignty. The Apex Court’s constitutional view is that the Constitution of Jammu and Kashmir is subordinate to the Constitution of India. It also said that the Constitution of India is a complete code for constitutional governance. “The implicit but necessary consequence of the application of the Constitution of India in its entirety to the State of Jammu and Kashmir by CO 273 is that the Constitution of the State is inoperative and is declared to have become redundant”
On one major issue of downgrading J&K, the Judgment has come under severe criticism for non-adjudication of the constitutional validity of the Parliament’s decision to downgrade the State of Jammu & Kashmir to Union Territory. The constitutional procedure of affecting the area, boundaries or name of the State has been prescribed in the first proviso to Article 3 of the Constitution of India. The proviso made it mandatory for the President to refer the Bill to affect the area, boundaries, or name of the States to the Legislature of the concerned State for its views which are recommendary. In the J & K case, the Assembly was dissolved and its functions were performed by the Parliament. So, it was not possible to ascertain the views of the State Legislature.
The Apex Court has taken cognizance of the statement of the Solicitor General that the Statehood would be restored to J&K soon except for carving out of the UT of Ladakh and recorded that “we did not find necessary to determine whether the reorganisation of the State of Jammu & Kashmir into two UTs is permissible under the proviso of Article 3 of the Constitution. It, however, recorded in its judgment that “Restoration of statehood shall take place at the earliest and as soon as possible.”
Was it fair on the part of the Constitutional Bench to avoid determination the constitutional vires of this action of the Govt which was first of its kind to downgrade a State into a Union Territory? Non adjudication of this important matter relating to democratic rights of the people of J&K has not gone well with the people as well as the legal luminaries. Moreover, the direction to restore Statehood at the earliest and “as soon as possible” is without any time frame and vague. However, the direction to hold elections to the Assembly before 30th September is specific.
This leads to another question. Well, the Apex court, in its wisdom, decided to rely on the statement of the Solicitor General and left the issue undecided. The Solicitor General appeared on behalf of the Union Govt and not the Parliament. Under Article 3 of the Constitution of India, it is prerogative of the Parliament to give Statehood and not the Govt of India. No one can give assurance on behalf of the Parliament, not even the Solicitor General of India. So, on whose assurance the Supreme Court said in the judgment that “Restoration of statehood shall take place at the earliest and as soon as possible.” Criticism of the Supreme Court’s judgment at least on this issue has some merit.
The modified Article 370 does not have any special feature and all amendments made in any provision of the Constitution shall automatically be extended to Jammu & Kashmir. No resident of J&K would now be deprived of the benefit of any progressive changes that the Parliament may bring about in the Constitution like any other part of India.
Now, there is no constitutional way left for the return of the original Article 370 for Jammu & Kashmir. The Supreme Court was the only hope for pro-Article 370 for restoration of special provisions & internal autonomy. Yes, the Parliament can amend this Article under Article 368 but such a Bill will isrequired to be passed by each House by a majority of the total membership of the Houseand by two third majority of the members present and voting in each of both Houses. There is a remote possibility of any ruling party to command two third majority in the Parliament in future, at least pro-Article 370. And moreover, people across the country do not support return of this maligned provision, and for all practical purposes, it has gone for ever.
( feedback:kbjandial@gmail.com)

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