Context: Constitutional bench of Supreme Court of India in its unanimous ruling has upheld the repealing of Jammu and Kashmir’s special status granted by Article 370.
About Article 370:
State of Jammu and Kashmir is a constituent state of the Indian Union, but the state enjoyed special status under the Article 370 of the Constitution in terms of greater autonomy and powers enjoyed by other states. The state had its separate constitution regulating certain matters.
Constitutional status of J&K before abrogation of Article 370:
- Prior approval of State government: Union government needed approval from the state government to apply laws in Jammu and Kashmir, except for those related to defense, foreign affairs, finance, and communications.
- Special rights to the citizens: Special rights were provided to the permanent residents of J&K with regard to employment under the state, acquisition of immovable property in the State, settlement in the State, and scholarship or other forms of aid as the state government may provide.
- Property rights: No citizen from other states could buy land or property in J&K.
- Fifth and Sixth Schedule: The fifth Schedule pertaining to the administration and control of Schedule Areas and Scheduled Tribes and the sixth Schedule pertaining to administration of tribal areas were not applicable to the state of J&K.
- Emergency provisions: It barred the central government from declaring emergency in the state on grounds of internal unrest without the concurrence of the state government. Further, Union had no power to declare financial emergency under Article 360 in J&K.
- Fundamental Duties and DPSPs not applicable: Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution WERE not applicable to J&K. In addition to other fundamental rights, Articles 19(1)(f) and 31(2) of the Constitution were still applicable to J&K; hence the Fundamental Right to property was still guaranteed in J&K.
Abrogation of Article 370:
The Union Government on August 5 and August 6, 2019, through Presidential Order 272 and 273 made the Constitution of India applicable to State of J&K, furthermore all provisions of Article 370 were rendered inoperative. This was challenged by Writ Petition before the Supreme Court.
Impact of Abrogation on constitutional status of J&K:
- Application of Constitution: Constitution of India is applicable to the State of J&K in totality.
- Economic development: Implementation of Prime Minister Development package and Central sector scheme for development of J&K has led to increased development, job creatin and sustained economic growth of 8%.
- Government schemes: Key central government schemes like Saubhagya and Ujjwala have been implemented for the weaker sections of the society will be extended to J&K.
- Reservation provisions: Reservation provisions for the Scheduled Tribes and OBCs shall now be applicable to the State.
- Nomination of Kashmiri Migrants: Two members shall be nominated to Legislative Assembly from Kashmiri migrant community to the legislative assembly (one being female).
- Delimitation and increase in number of seats: Number of seats in legislative assembly of J&K shall be increased by 7 to accommodate the Scheduled Tribe (ST) community.
- Grassroot governance: With the conduct of elections of Panchayati Raj Institutions such as Panch and Sarpanches, Block Development Councils and District Development Councils, the 3-tier system of grassroot level democracy has now been established in J&K. Earlier It had its own J&K PRI Act of 1989.
Key questions before the court and the opinion of Judiciary:
- On sovereignty of Jammu and Kashmir:
- J&K listed as State in original constitution: Article 1 (in the original Constitution) referenced Part III States, and Jammu and Kashmir was listed as a Part III State in the First Schedule to the Constitution of India. (In 1950, the Constitution contained fourfold classification of States and territories of India, these were subsequently abolished by 7th Constitutional Amendment Act 1956)
- Section 3 of J&K Constitution: Section 3 of the Constitution of Jammu and Kashmir declared that Jammu and Kashmir is an integral part of India. The provision read: “Relationship of the State with the Union of India: The State of Jammu and Kashmir is and shall be an integral part of the Union of India. “Section147 of the J&K Constitution prohibited any amendment to Section 3.
- Effective merger: When the Ruler of J&K adopted the Indian Constitution, it effectively had the effect of a ‘merger’ like situation, so it cannot be said that J&K exercised internal sovereignty. The King of J&K signed the same instrument of accession as had other princely states who had decided to merge their territory into Union of India.
Whether Article 370 is temporary or permanent?
- Temporary feature: Article 370 was meant to be a “temporary” feature, and since it is meant to be a temporary arrangement, it cannot be said that the mechanism under Article 370(3) which empowered the President to make rules for J&K came to an end after the State Constituent Assembly was dissolved.
- Act as a legal bridge: There are two aspects which show the temporary nature of Article 370. First, it was intended as an interim arrangement until the Constituent Assembly of the State was formed since in the interim, there was needed a legal bridge between J&K and India. Once the J&K Constitution was enacted and it was adopted as integral part of India, this arrangement would not have been necessary.
- Product of historical circumstances: Article 370 was adopted because of special circumstances in the state which was experiencing war like situation.
- On legality of abrogation of Article 370.
- On August 5, 2019, then President issued Constitutional Order 272, which amended Article 367 of the Constitution (Article 367 deals with interpretation of the Constitution, and the CO added a new meaning to “Constituent Assembly of Jammu and Kashmir” to mean “legislative assembly of Jammu and Kashmir.”)
- Presidential Order 273 was promulgated seeking the consent of Parliament (which had assumed powers of the J&K legislature) to recommend that “all clauses of the said article 370 shall cease to be operative”.
- Circuitous route was not needed: CJI held that the circuitous route of first changing the meaning of the Constituent Assembly of J&K was not needed at all.
- Essentially, after the Constituent Assembly of the state ceased to exist, the President could have always unilaterally abrogated Article 370.
- President's power under Article 370(3) remains unaffected even if the Constituent Assembly of J&K is dissolved. Thus, the President has power to declare the article inoperative.
- On action taken under president’s rule:
- Presidential action only to be challenged on the ground of mala fide or irrational: Relying on S.R. Bommai ruling, the court said that the standard to decide the validity of the President’s action was to see whether it was not “mala fide or palpably irrational”, or that the “advisability and necessity of the action was not borne in mind by the President”. But in this case, since there is no such consideration, the Action is valid.
Concerns with respect to judgement:
- Subverts spirit of federalism: Judgement has subverted the spirit of federalism, Indian Constitution has emphasized on asymmetric federalism, which provides special status to certain states because of historical context.
- Undermines Constitutional procedure under Article 3: Under Article 3, state can be reorganized with prior consultation of State Legislatures, this principle was not followed.
- Undermines the rights of States: While the State J&k was under President’s rule, the Parliament passed the act on behalf of State. This precedent undermines federalism as the basic structure of the constitution which provides for State governments rights and protections against the hostile actions by executive in absence of state legislature.
- Creation of Union Territory: Creation of Ladakh as UT has simplified the way in which Union can carve out areas from a State and declare them as Union Territory in future which could have implications in long term.
- Judicial silence on creation of UT: Court has stayed silent on the creation of UT, this is a kind of evasion of duty as a guardian of Indian Constitution.
- Sovereignty is pluralistic: In federal constitutions, sovereignty is not a monistic concept, it has to be shared with the constituent units.
Way forward:
- Truth and reconciliation commission: A truth and reconciliation commission should be set up to-
- Investigate and report the violations of human rights by both the state and on state actors in J&K
- Recommend measures for reconciliation and resolution of conflict.
- Restoration of Statehood and conduct of elections: Statehood should be restored for J&K and elections should be held at the earliest for reinstatement of democratic process.