Explainer On Article 370 Case In Supreme Court : Issues & Arguments Regarding J&K Special Status Abrogation

Nearly four years after the Central Government abrogated the special status of Jammu and Kashmir under Article 370 of the Constitution, the much anticipated hearing of the petitions challenging the decision will start in the Supreme Court on August 2, 2023.

As the case - which had been lying dormant in the Supreme Court for over three years since its last listing in March 2020 - is now going to the final hearing stage, here is an explainer on the issues and the arguments raised by both the sides.

What is Article 370?

The Indian Independence Act of 1947 marked the end of British colonization in India and led to the partition of British India into the independent dominions of India and Pakistan. Alongside this, the Instrument of Accession (IoA) was introduced. The IoA allowed the rulers of princely states, which were under British paramountcy, to choose between joining India or Pakistan. The State of J&K signed the IoA with India to seek assistance in countering an invasion from Pakistan.

The original accession covered three crucial matters: defense, foreign affairs, and communications. As India was drafting its Constitution, it was proposed that only those provisions of the Indian Constitution corresponding to the original IoA should apply to the State of J&K. Consequently, Article 370 was incorporated into the Indian Constitution. This article granted special status to J&K and permitted the state to draft its own Constitution. Moreover, it limited the legislative powers of the Indian Parliament concerning J&K, stating that articles of the Constitution, except those related to defense, foreign affairs, and communications, would apply to the state only with the concurrence of the State's constituent assembly.

Article 370 was included in the Constitution on October 27, 1949, under Part XXI, titled "Temporary, Transitional, and Special Provisions." Initially intended as a temporary provision, it was expected to remain in effect until the formulation and adoption of the State of J&K's constitution. However, the State's constituent assembly dissolved itself on January 25, 1957, without recommending either the abrogation or amendment of Article 370, leaving the status of the provision uncertain.

Over time, through judgments from the Supreme Court of India and the High Court of Jammu and Kashmir, Article 370 came to be considered as having acquired permanent status. This meant that to apply a central law to the state regarding subjects included in the IoA, "consultation" with the state government was required. On the other hand, for central legislation concerning matters beyond defense, foreign affairs, and communications, the "concurrence" of the state government was mandatory.

Abrogation of Article 370

Article 370(3) prevented the Indian parliament from amending Article 370 without the concurrence of the J&K Constituent Assembly. However, as mentioned above, the State’s Constituent Assembly was dissolved in 1957. Therefore, the revocation of J&K’s special status was executed in a two-step process through the promulgation of the Constitution (Application to Jammu & Kashmir) Order, 2019 on August 5, 2019. The implementation of these steps was aided by the fact that the State had been under the Presidential Rule since December 2018.

First, the Constitution (Application to Jammu & Kashmir) Order, 2019, also known as the CO 272 order was passed. This order superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 and declared that all the provisions of the Constitution of India would apply to J&K. It also amended Article 367 of the Constitution. As Article 370 could only be amended by the recommendation of the J&K Constituent Assembly, the CO 272 order introduced a clause to Article 367. This clause stated that the expression "Constituent Assembly of the State," referred to in clause (2) of Article 370, should be read as the "Legislative Assembly of the State." Since there was no legislative assembly of J&K owing to its dissolution and the state was under Presidential rule, the recommendation of the Parliament was treated as equivalent to the recommendation of the legislative assembly. 

Also, CO 272 introduced further clauses in Article 367 to state that reference to the "Government of J&K" can be construed as the "Governor of J&K".

Following this, the Central Government took the second step. A Statutory Resolution recommending the abrogation of Article 370 was passed by the Lok Sabha with a majority of 351 to 72 votes and later cleared by the Rajya Sabha. On August 6, 2019, based on the statutory resolution passed by the Parliament, President Ram Nath Kovind issued a notification (CO 273) stating that from the 6th August 2019, all clauses of Article 370 would cease to be operative. This effectively revoked the special status of Jammu and Kashmir.

The President invoked the powers under Article 370(3) to issue these notifications. Article 370(3) gives President the power to declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify.

Notably, the Parliament also passed the Jammu and Kashmir Reorganization Bill 2019, which resulted in the bifurcation of the state into two Union Territories – Jammu and Kashmir, and Ladakh.

Formation of the Constitution Bench

On the same day of the Presidential notification, Advocate ML Sharma initiated the legal challenge to the Constitution (Application to Jammu & Kashmir) Order, 2019 by moving the Supreme Court under Article 32 of the Constitution. Subsequently, activist Tehseen Poonawalla and Advocate Shakir Shabir, a lawyer from Jammu and Kashmir, also filed petitions challenging the same order. In the days that followed, a wave of petitions against the abrogation of Article 370 emerged from various quarters, including law graduates, National Conference leaders, former bureaucrats, defense personnel, and politicians, among others. These petitions raised concerns over different aspects of J&K, such as media freedom, detention of political leaders, challenges to the valley's lockdown, internet shutdowns, and more.

Given the multitude of petitions and their significance, the Supreme Court responded by constituting a Constitution Bench. The Bench comprised Justices N V Ramana, Sanjay Kishan Kaul, R Subhash Reddy, B R Gavai, and Surya Kant. This Constitution Bench was assigned the task of hearing and adjudicating the petitions challenging the Presidential Orders under Article 370, which resulted in the revocation of J&K's special status along with the bifurcation of the State in two Union Territories. Additionally, the petitions concerning the lockdown measures and communication shutdown in J&K were separately heard by a 3-judge bench led by Justice NV Ramana.

Arguments raised before Constitution Bench

During the hearings before the Constitution Bench, spanning eight days, a series of arguments were presented by the petitioners and counter arguments were offered by the Centre.  

1. On the nature of Presidential Rule

Petitioners' Argument: First, the petitioners argued on the legality of the President’s Rule in J&K which was invoked under Article 356 of the Constitution. It was stated that such a rule is meant to be temporary in nature. Thus, the exercise of the President’s and the Parliament’s power when a State was under the President’s rule was also meant to be temporary and restorative in character. It was meant to ensure that a situation obtains again where a constitutional government is possible in the state. Thus, the power under Article 356 could not be used to bring about irreversible constitutional changes.

Centre’s Counter: Per contra, the Union Government argued that the President’s rule was conferred in the state strictly in conformity with the applicable constitutional provisions and was based on the assessment of various germane facts, in order to ensure that the administration of the State was carried out in accordance with the Constitution. Further, requisite approval was also granted by the Parliament under Article 356 for the President’s rule and the resolutions were passed in both the houses.

2. On the requirement of concurrence with the State Government

Petitioners' Argument: Since the State of J&K was under the President’s Rule from December 2018 till October 2019, all decisions in the State were taken by the Governor. Petitioners argued that the Governor was merely a delegate of the President, substituting for a popularly elected government as an emergency measure. Therefore, the will of the people of J&K found no expression in the concurrence of the government of the State provided by the Governor. Thus, the concurrence was invalid. The petitioners also argued that concurrence was also undemocratic since neither the President nor the Governor held any consultations on the issue either with the public at large or with members of the legislative council.

Centre’s Counter: The centre submitted that since the state was under the President's rule at the relevant time, the Parliament was vested with the powers otherwise exercisable by the Legislature of the state. Thus, as per Article 356(b), the Parliament was well within its powers to legislate in this case.

3. On the powers of the President under Article 370(1)(d)

Petitioners' Argument: As per the petitioners, the President’s power under Article 370(1)(d) was not a “constituent power” but merely a power to apply provisions with “modifications and exceptions”. Thus, the President only had an inherently limited power. Accordingly, Article 370 could only be abrogated if a proposal for its cessation emanated from the State’s Constituent Assembly (or its successor in law, if any). Since the J&K Constituent Assembly did not exist at the time, such a presidential notification could not have been passed. 

Centre’s Counter: The Centre argued on the broad nature of the President’s power under Article 370(1)(d). It submitted that the power under Article 370(1)(d) was exercised by the President on as many as six occasions when the President's Rule was in force in J&K and that at no time was any issue or challenge ever raised against the exercise of this power on the ground that the Legislative Assembly of J&K or the State Government of J&K were not in existence. Further, reliance was placed on Purartlal Lakhanpal v. President of India, (1962) 1 SCR 688 to state that the President had wide scope of power under Article 370(1)(d) to modify the provisions of the Constitution in their application to J&K.

4. On the vires of bifurcation of the State

Petitioners' Argument: The Petitioners argued that the action of bifurcation of the State into two Union Territories – Jammu and Kashmir, and Ladakh was in violation of Article 3 of the Constitution. This was because the character of a state could not be extinguished in its entirety into two union territories. It was argued that doing so impinged upon the federal character of the constitution because Article 3 limited the extent to which the federal nature of the Union could be reduced. Basically, it was stated that while states can be carved out from existing states, like Telangana was carved out from Andhra Pradesh, states could be entirely reduced into UTs.

Centre’s Counter: Referring to this submission of the petitioners as ex-facie untenable, the Centre submitted that the Explanation to Article 3 clearly provided that the references to "State" in Article 3, included a reference to a "Union Territory". Thus, the Centre could in fact bifurcate a State in two Union Territories. The Centre added that the bifurcation of J&K was done in order to address the grave problems of terrorism, militancy and separatism perpetrating in the valley. The move was also said to be crucial from the standpoint of economic upliftment of the valley by exploring the potential of tourism in the state and increasing employment opportunities by establishing industries.

5. On the applicability of the Constitution of J&K

Petitioners' Argument: The petitioners argued that the Centre’s action was also in violation of Article 147 of the Constitution of J&K. As per Article 147, limited amendments to Articles 3 and 5 of the J&K constitution could be made. Arguing that the Constitutions of J&K, and India, were parallel and independent of each other, the petitioners submitted that an executive exercise of power could not supersede constitutional power.

Centre’s Counter: Centre submitted that Article 147 of the J&K Constitution could not in any manner affect, dilute or control the power conferred on the President of India under Article 370 of the Indian Constitution. Equally, it could not fetter Parliament in the exercise of its functions under the Constitution of India. Adding that the provisions of the Constitution of India, including Article 370(1)(d) and 370(3) were not subject to, or subservient to, Article 147 of the Constitution of J&K, the Centre relied on SBI v. Santosh Gupta, (2017) 2 SCC 538. In this case it was held that the Constitution of J&K was ''subordinate to the Constitution of India".

Reference to a 7-judge bench

During the proceedings before the Constitution Bench, Senior Advocate Dinesh Dwivedi, representing journalist Prem Shankar Jha, urged for the matter to be referred to a 7-judge Bench due to conflicting opinions rendered by coordinate Benches of the Supreme Court in two significant cases: Prem Nath Kaul v. The State of Jammu and Kashmir [1959 AIR 749] and Sampat Prakash v. State of Jammu and Kashmir [1970 AIR 1118]. Senior Advocate Sanjay Parikh also supported this request.

The essence of their argument centered around the contradiction between Sampat Prakash and the earlier judgment in Prem Nath Kaul. The concern was that Sampat Prakash upheld a Presidential Order passed under Article 370 after the year 1957, when the constituent assembly of Jammu and Kashmir had already been dissolved. On the other hand, Prem Nath Kaul had established that the President and Parliament no longer possessed the powers under Article 370 to issue such orders after the dissolution of the J&K Constituent Assembly.

Dwivedi and Parikh contended that even the 5-judge Bench hearing the issue would not be able to resolve this conflict, as it had the same composition as the benches in the earlier cases.

Notably, the reference to a larger Bench was not supported by other senior counsels, including the then Attorney General K.K. Venugopal.

Ultimately, the Supreme Court held that there was no need to refer the petitions to a larger bench. It was held that the context of Prem Nath Kaul case was different, as it was dealing with the validity of a legislation passed by the Yuvraja of J&K before the sitting of the Constituent Assembly of J&K. Therefore, owing to difference in circumstances as well as the issues raised, it could not be held that there was a conflict in the two judgements.

The Aftermath

Once the reference to a 7-judge bench was declined on March 2, 2020, the matter was not listed for a long time. Ultimately, on April 2022, Senior Advocate Shekhar Naphade mentioned before the then Chief Justice of India NV Ramana, the urgency to list the long pending petitions. While CJI Ramana stated that he would consider reconstituting a 5-judge bench to hear the matter again, the matter was ultimately not listed for hearings in either his or his predecessor CJI UU Lalit’s tenure. After the matter was mentioned before the current CJI DY Chandrachud on three different occasions, it was finally listed for hearings on August 2, 2023. The bench taking up the matter comprises CJI DY Chandrachud, Justice SK Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant.