The Supreme Court will decide the constitutionality of the presidential orders that did away with Jammu and Kashmir’s special constitutional status.
It will also rule on the constitutionality of the Jammu and Kashmir Reorganisation Act, 2019, which bi-furcated the State into two Union Territories.
Article 370 of the Constitution of India provided the State of Jammu and Kashmir (J&K) special constitutional status. J&K enjoyed its own constitution and control over internal administration.
Article 370 was the result of the Instrument of Accession, which was signed by J&K Maharaja Hari Singh in 1947. Article 370 was intended as 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 on 5 August, the Union government diluted Article 370, revoking J&K’s special status. First, President Ram Nath Kovind issued presidential order CO 272, making it so that the Union could amend Article 370 without the recommendation of the J&K Constituent Assembly. CO 272 amended the interpretation provision Article 367, 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, the powers of the J&K Legislative Assembly were vested in the Union Parliament. 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 6 August, 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.
Finally, on 9 August, the Union Parliament bi-furcated 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.
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 16 August, at least four additional petitions have been filed.
The petitions raise broadly two challenges. First, there is the challenge to the erosion of Article 370 and second there is the one to the bi-furcation 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, what 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.
Regarding the second, they contend that the Jammu and Kashmir Reorganisation Act of 2019 was unconstitutionally passed 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. This right cannot be taken away without the due procedure established by the law.
3. Does the Jammu and Kashmir (Reorganisation) Act of 2019 violate Article 3 and Part III of the Constitution?
2. Do the Statutory Resolution and CO 273 violate the fundamental democratic rights of the people of J&K under Articles 14 and 21 of the Constitution, by abrogating Article 370 without their consent during President’s Rule?
1. Can Article 370(1)(d) be validly used to alter the interpretation of Article 370, as was done by presidential order CO 272?