Article 370

Case Description

Article 370 of the Constitution of India provided the State of Jammu and Kashmir (J&K) special constitutional status. The provision substantially limited Parliament’s power to legislate for the State in comparison to other states.

Article 370 was the result of the Instrument of Accession, which was signed by the erstwhile ruler of J&K, Maharaja Hari Singh in 1947. Article 370 was intended to be a temporary provision to allow J&K to transition from an independent princely state to a democratic state under the dominion of India.

Over two days, starting from August 5 2019, the Union government diluted Article 370, revoking J&K’s special status. First, President Ram Nath Kovind issued presidential order CO 272. Article 370 could only be amended by the recommendation of the J&K Constituent Assembly. The presidential order (CO 272) allowed the Union to amend Article 370 without the recommendation of the Constituent Assembly. It did this by amending another part of the Constitution which explains how the Constitution should be interpreted (Article 367). The amendment made it such that the reference to the ‘Constituent Assembly’ in Article 370(3) became a reference to the ‘Legislative Assembly’.

Since J&K was under President’s Rule at the time, the powers of the J&K Legislative Assembly were vested in the Union Parliament. So, a few hours after CO 272 was issued, the Rajya Sabha recommended the abrogation of Article 370, via a Statutory Resolution under Article 370(3).

On August 6, President Kovind issued a Proclamation, CO 273, putting into effect the Rajya Sabha’s recommendation. All clauses of Article 370 ceased to operate, except clause 1 which was amended to state that the Constitution of India applies to the State of J&K. This removed the special status of J&K.

Finally, on August 9, the Union Parliament bifurcated the State of J&K into two Union Territories by passing the Jammu and Kashmir Reorganisation Act, 2019. The two new Union Territories are J&K and Ladakh – only the former retained a legislative assembly.

Initially, a Bench comprising Chief Justice Ranjan Gogoi, Justice Sharad Bobde and Justice Abdul Nazeer heard the matter. On October 1, a Constitution Bench led by Justice Ramana began to hear the matter.”

Legal Challenge

On the same day as CO 273 was issued, advocate ML Sharma filed a petition under Article 32 challenging the constitutionality of the dilution of Article 370. Subsequently, on 9 and 10 August, two additional Article 32 petitions were filed by Kashmiri advocate Shakir Shabir and the J&K National Conference leaders, Mohammed Akbar Lone and Hasnain Masoodi.

The petitions seek the Court to declare CO 272, CO 273 and the J&K Reorganisation Act ‘unconstitutional, void and inoperative’. As of August 16, at least four additional petitions have been filed.

The petitions raise broadly two challenges. While the first challenge pertains to the erosion of Article 370, the second one challenges the bifurcation of the State of J&K into two Union Territories.

Regarding the first, the petitioners can broadly be said to be applying the ‘doctrine of colourability’. The doctrine prohibits the passing of legislation which seeks to indirectly do something which is not allowed to be done directly. Article 370(3) prohibits the President from amending Article 370 without the concurrence of the Constituent Assembly. CO 272 and 273 in effect amend Article 370 without the Assembly’s concurrence. The steps in this process are:

• • The Constituent Assembly dissolved in 1957.
  • CO 272 uses Article 370(1)(d) to amend the interpretation provision Article 367, inserting clause 4. Article 367(4) states that the reference to ‘Constituent Assembly of the State’ in Article 370(3) shall mean ‘Legislative Assembly of the State’.
  • The Rajya Sabha Statutory Resolution recommends the President under Article 370(3) to amend Article 370(1), to make the Constitution of India applicable in the State of J&K. The Rajya Sabha was able to exercise the powers of the J&K Legislative Assembly because J&K was under President’s Rule at the time.
  • CO 273 uses Article 370(3) to amend Article 370. It removes all clauses, except Article 370(1), which it amends to make the Constitution of India applicable to the State.

Regarding the second, they contend that the Jammu and Kashmir Reorganisation Act of 2019 was unconstitutional under Article 3. Article 3 of the Constitution does not give the Parliament powers to downgrade federal democratic states into a less representative form such as a Union Territory.

The petitioners further contend that in a federal democracy, the right to autonomous self-government, specifically with respect to constitutional and political status, is a fundamental right under Part III of the Constitution and cannot be taken away without the due procedure established by the law.