(This article was originally published on 8 August 2023. It has been updated in light of the upcoming Supreme Court verdict in the Article 370 case on Monday, 11 December.)
During the hearing of the Article 370 case in the Supreme Court, senior advocate Kapil Sibal, in one of his comments, said that there would have been no Constitution of Jammu & Kashmir (J&K) if Article 370 was to be abrogated.
"The Parliament incorporated the provisions of the Constituent Assembly. Why? There was no Constituent Assembly in place, only a National Assembly. This must have happened in collaboration with J&K... Now it had to be on the recommendation of the Constituent Assembly, so it had to be a temporary provision. It was temporary because there was nothing in place, not because this provision had to go," he added.
His statement emerged in the light of a batch of petitions challenging the the Central government's decision to remove Article 370 of the Constitution – the verdict of which is slated for Monday, 11 December.
A series of whirlwind events had taken place during the decade of the 1950s. Understanding them is important to make sense of what actually transpired during the Supreme Court proceedings.
Explained: A Look Back at the History of Article 370 Ahead of the SC Verdict
1. Introduction of Article 370 in J&K
1947 was an eventful year in many ways. Upon signing the accession document with the maharaja of Jammu & Kashmir, which was then a kingdom perched upon the confluence of three countries, the Indian government dispatched plane-loads of the Army to Kashmir where they fought back the tribal irregulars who had descended into the Valley with the aim of absorbing it into Pakistan.
The incursion was a consequence of another major event: a rebellion against the maharaja’s forces had broken out in the western J&K region of Poonch in response to the move to impose "onerous taxes" on locals. Realising that his authority no longer existed, the maharaja fled.
Thus, the Indian leaders, who had secured the accession amid hectic rounds of negotiations, were wary that the monarchical control over J&K had begun to come apart.
They had, however, someone else to fall back on to ensure that the freshly-signed accession didn’t unravel — Sheikh Abdullah — a prominent Kashmiri leader at that time, who manoeuvred this situation adroitly. He raised a civil militia that inflicted crucial reverses on the Pakistani raiders. Once the threat of invasion was repulsed, Abdullah pledged to uphold the accession.
But he had conditions.
He wanted J&K to be treated as a 'special case’ and got the Indian leaders to enshrine the promises of legislative and political autonomy into a law called Article 306-A. When India was formally proclaimed as a Republic in January 1950, elements drawn from 306-A were amalgamated into a new constitutional framework under the rubric of Article 370.
Expand2. The Debate Resurrects
73 years later, these events were subject to a fervent discussion inside the chambers of the Supreme Court where the Bench led by the Chief Justice of India (CJI) DY Chandrachud and also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, heard a clutch of petitions challenging the revocation of Article 370 and the bifurcation of the J&K into two Union Territories.
“Can you delete provisions of the Constitution by an executive act? Can you decimate the Constitution by an executive act”, asked Kapil Sibal in the court , who was representing one of the petitioners, citing Abdullah's speeches defending J&K's decision to accede to India in 1947. “(Article) 370 talks about IoA (Instrument of Accession) and items in the concurrent list. But it doesn't talk about List Two which is the residuary powers of the State.”
Sibal’s arguments rested on the facts that J&K’s Constituent Assembly, which was brought into being in May 1951 by the then ‘Sadr-e-Riyasat’ (the title was later renamed as Governor) Karan Singh, was guided by the political mandate of drafting the J&K’s Constitution.
Once the Constitution was systemised and the Assembly was dispersed (which happened in 1957), its powers to amend Article 370 were also forfeited. Sibal argued that the Narendra Modi government cannot revive the powers of a long dead Constituent Assembly through an executive decree.
Expand3. Going Back in History To Decipher the Court Discussions
In January 1950, the President made the first Constitution (application to Jammu and Kashmir) Order under Article 370, demarcating the competence of the Indian Parliament to enact laws applicable to J&K. The Parliament’s powers were limited to legislate on three categories (defence, communication, and foreign affairs) specified in the accession treaty “in consultation with the government of J&K” ; and on other subjects of the Union list only with the “final concurrence of the J&K Assembly.”
This meant that J&K effectively had a Constitution of its own, and could exercise special powers including having a separate flag.
The elected leader of J&K was called 'Prime Minister' (that nomenclature was changed in the mid-1960s by provincial Congress leader Ghulam Muhammad Sadiq).
The federal laws could be indeed made applicable but only when J&K’s legislature offered a green signal.
A political rift between Abdullah and Jawaharlal Nehru, the country’s first Prime Minister, over the nature of powers that the Union could exercise over J&K was resolved with talks in 1952 and culminated with what is called the 'Delhi Agreement’.
Its contents, which reaffirmed that 'Residuary powers’ would rest with J&K unlike other states of India, were reported to the Parliament on 24 July 1952.
Expand4. Eroding Article 370
In 1954, however, after Sheikh Abdullah was dismissed from power (over his alleged attempts to reverse the accession), his lieutenant Bakshi Ghulam Muhammad took over.
Under the Constitutional Order 1954 which superseded the previous one, Bakshi agreed to expand the Union government’s powers to legislate on the majority of subjects on the Union List, and consequently, J&K’s new financial and fiscal relations with New Delhi were placed on the same footing as those of other states.
"The developments of 1954 were the beginning of the end for Article 370, which has effectively been dead in letter and in spirit since that time,” Scholar Sumantra Bose has observed.
Subsequently, there were more similar centralisation efforts that "weakened” Article 370 such as the December 1964 proclamations by the Union Home Ministry making Articles 356 and 357, which empowered the Centre to dismiss elected governments in the states, enforceable in J&K.
The successive Union governments have used Article 370 at least 45 times to extend federal laws to J&K.
Expand5. What Happened to J&K’s Constituent Assembly?
On 26 January 1957, J&K’s new Constitution came into effect, applicable to the whole of J&K including Pakistani-occupied areas. Since the work of the Constituent Assembly was over, the body was disbanded and a Legislative Assembly took its place.
It is here that matters turn sensitive.
Although Article 370’s conferral stemmed from political promises made to Sheikh Abdullah as well as the accession treaty which circumscribed the Indian government’s powers in relation to J&K, the law in theory could still be declared null and void.
Clause 3 of Article 370 had empowered the President to declare the provisions of the law inapplicable. But a change like that would require the recommendation of the Constituent Assembly of J&K first. But as the Constituent Assembly was dissolved in 1957, where did such a concurrence come from, then?
On 5 August 2019, when the Centre voided J&K’s special status, it amended the 1954 Constitution Order as well as Article 367 to make all provisions of the Indian Constitution enforceable in J&K.
Complimenting this decision was the Presidential declaration issued under the above-discussed Clause 3 the following day that disabled all special provisions of Article 370.
This was achieved by utilising Clause 1 (d) of Article 370 to amend Article 367, which determines the rules for the interpretation of the Constitution. The modifications replaced the expression "Constituent Assembly of the State” in Article 370 (3) with "Legislative Assembly of the State.”
At the time of rescinding Article 370, J&K was under the President’s rule (which means imposition of Article 356), in place since December 2018 after the expiry of six months of Governor’s rule which had come into effect after the BJP withdrew support from its coalition partner, the People’s Democratic Party (PDP) in June 2018.
This meant that legislative powers of the state were effectively in the hands of the President which in effect made it possible for them to offer concurrence on J&K’s behalf.
Expand6. The 'Untrammelled Powers’ of the President
These specifics were most hotly discussed in the Supreme Court during the hearing.
This takes us back to Sibal’s words in the courtroom, questioning whether the Parliament can enjoy the competence to declare itself a Constituent Assembly. “So you had to have the recommendation of the Constituent Assembly before you could efface 370,” Sibal said. “That’s what the Constitution makers themselves thought in 1950. And that operated till 6 August. How could it change?”
In response, the CJI asked what would happen if the Constituent Assembly which alone could offer a recommendation to disable the provisions of Article 370 ceased to exist.
“That's the point. The President can't issue such a notification,” Sibal answered. The CJI, however, wondered if the "operative part of (Clause) 3” still continued, the dissolution of the Constituent Assembly notwithstanding.
Drawing attention to clauses Clauses (b), (c), and (d) in Article 370, the CJI pointed out that "…the whole area of concurrence and consultation is confined to the entries of the Union and the Concurrent list. That's clear from the scheme. The President is given an untrammelled power to specify which are the provisions of the Constitution which apply to J&K.”
"Are you saying the President has blanket powers?” Sibal asked. “Can the will of the people of J&K be caged or silenced in this fashion,” he questioned.
Expand7. Is Article 370 Not Sacrosanct?
On the second day of the hearing, Sibal had argued that it was the genesis of the politics of the day which determined what kind of Constitution (a reference to special status) people wanted.
“Which is why we talk about minorities, diversity, etc in our constitution. What were we faced with in 1947? A situation where diverse communities, races, religions came together,” he said. “So, you have provisions dealing with minorities, reservations, SC/ST, etc – that's a political process. That's why our constitution is what it is today.”
The CJI, however, asserted that to "completely divorce the power of amendment from the political process inherent in the amending power would not be appropriate. Because there's no strict dichotomy between that.”
As Sibal defended the unassailability of Article 370 saying that provisions to this effect came as a consequence of "dialogue between the maharaja and constitution-makers,” the CJI questioned how one would put into place the constitutional machinery then.
"It cannot be that because there is no Constituent Assembly, you cannot at all deliberate upon a proposal for abrogation or modification of Article 370,” the CJI said.
When Sibal argued that in absence of the Constituent Assembly's recommendation, Article 370 couldn't have been nullified, the CJI responded, “So, according to you, the power is completely lost once the J&K Constituent Assembly comes to an end,” he asked. Sibal said that, speculatively, there is “some power available – it may be (Article) 368.”
Justice Khanna then questioned whether Article 368 could amend Article 370 in the first place. However, the CJI intervened saying once it is assumed that Parliament can nullify the law, "any amendment of 370 would be subject to criticism on the ground of morality, but not power.”
(Shakir Mir is an independent journalist. He tweets at @shakirmir. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Expand
Introduction of Article 370 in J&K
1947 was an eventful year in many ways. Upon signing the accession document with the maharaja of Jammu & Kashmir, which was then a kingdom perched upon the confluence of three countries, the Indian government dispatched plane-loads of the Army to Kashmir where they fought back the tribal irregulars who had descended into the Valley with the aim of absorbing it into Pakistan.
The incursion was a consequence of another major event: a rebellion against the maharaja’s forces had broken out in the western J&K region of Poonch in response to the move to impose "onerous taxes" on locals. Realising that his authority no longer existed, the maharaja fled.
Thus, the Indian leaders, who had secured the accession amid hectic rounds of negotiations, were wary that the monarchical control over J&K had begun to come apart.
They had, however, someone else to fall back on to ensure that the freshly-signed accession didn’t unravel — Sheikh Abdullah — a prominent Kashmiri leader at that time, who manoeuvred this situation adroitly. He raised a civil militia that inflicted crucial reverses on the Pakistani raiders. Once the threat of invasion was repulsed, Abdullah pledged to uphold the accession.
But he had conditions.
He wanted J&K to be treated as a 'special case’ and got the Indian leaders to enshrine the promises of legislative and political autonomy into a law called Article 306-A. When India was formally proclaimed as a Republic in January 1950, elements drawn from 306-A were amalgamated into a new constitutional framework under the rubric of Article 370.
The Debate Resurrects
73 years later, these events were subject to a fervent discussion inside the chambers of the Supreme Court where the Bench led by the Chief Justice of India (CJI) DY Chandrachud and also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, heard a clutch of petitions challenging the revocation of Article 370 and the bifurcation of the J&K into two Union Territories.
“Can you delete provisions of the Constitution by an executive act? Can you decimate the Constitution by an executive act”, asked Kapil Sibal in the court , who was representing one of the petitioners, citing Abdullah's speeches defending J&K's decision to accede to India in 1947. “(Article) 370 talks about IoA (Instrument of Accession) and items in the concurrent list. But it doesn't talk about List Two which is the residuary powers of the State.”
Sibal’s arguments rested on the facts that J&K’s Constituent Assembly, which was brought into being in May 1951 by the then ‘Sadr-e-Riyasat’ (the title was later renamed as Governor) Karan Singh, was guided by the political mandate of drafting the J&K’s Constitution.
Once the Constitution was systemised and the Assembly was dispersed (which happened in 1957), its powers to amend Article 370 were also forfeited. Sibal argued that the Narendra Modi government cannot revive the powers of a long dead Constituent Assembly through an executive decree.
Going Back in History To Decipher the Court Discussions
In January 1950, the President made the first Constitution (application to Jammu and Kashmir) Order under Article 370, demarcating the competence of the Indian Parliament to enact laws applicable to J&K. The Parliament’s powers were limited to legislate on three categories (defence, communication, and foreign affairs) specified in the accession treaty “in consultation with the government of J&K” ; and on other subjects of the Union list only with the “final concurrence of the J&K Assembly.”
This meant that J&K effectively had a Constitution of its own, and could exercise special powers including having a separate flag.
The elected leader of J&K was called 'Prime Minister' (that nomenclature was changed in the mid-1960s by provincial Congress leader Ghulam Muhammad Sadiq).
The federal laws could be indeed made applicable but only when J&K’s legislature offered a green signal.
A political rift between Abdullah and Jawaharlal Nehru, the country’s first Prime Minister, over the nature of powers that the Union could exercise over J&K was resolved with talks in 1952 and culminated with what is called the 'Delhi Agreement’.
Its contents, which reaffirmed that 'Residuary powers’ would rest with J&K unlike other states of India, were reported to the Parliament on 24 July 1952.
Eroding Article 370
In 1954, however, after Sheikh Abdullah was dismissed from power (over his alleged attempts to reverse the accession), his lieutenant Bakshi Ghulam Muhammad took over.
Under the Constitutional Order 1954 which superseded the previous one, Bakshi agreed to expand the Union government’s powers to legislate on the majority of subjects on the Union List, and consequently, J&K’s new financial and fiscal relations with New Delhi were placed on the same footing as those of other states.
"The developments of 1954 were the beginning of the end for Article 370, which has effectively been dead in letter and in spirit since that time,” Scholar Sumantra Bose has observed.
Subsequently, there were more similar centralisation efforts that "weakened” Article 370 such as the December 1964 proclamations by the Union Home Ministry making Articles 356 and 357, which empowered the Centre to dismiss elected governments in the states, enforceable in J&K.
The successive Union governments have used Article 370 at least 45 times to extend federal laws to J&K.
What Happened to J&K’s Constituent Assembly?
On 26 January 1957, J&K’s new Constitution came into effect, applicable to the whole of J&K including Pakistani-occupied areas. Since the work of the Constituent Assembly was over, the body was disbanded and a Legislative Assembly took its place.
It is here that matters turn sensitive.
Although Article 370’s conferral stemmed from political promises made to Sheikh Abdullah as well as the accession treaty which circumscribed the Indian government’s powers in relation to J&K, the law in theory could still be declared null and void.
Clause 3 of Article 370 had empowered the President to declare the provisions of the law inapplicable. But a change like that would require the recommendation of the Constituent Assembly of J&K first. But as the Constituent Assembly was dissolved in 1957, where did such a concurrence come from, then?
On 5 August 2019, when the Centre voided J&K’s special status, it amended the 1954 Constitution Order as well as Article 367 to make all provisions of the Indian Constitution enforceable in J&K.
Complimenting this decision was the Presidential declaration issued under the above-discussed Clause 3 the following day that disabled all special provisions of Article 370.
This was achieved by utilising Clause 1 (d) of Article 370 to amend Article 367, which determines the rules for the interpretation of the Constitution. The modifications replaced the expression "Constituent Assembly of the State” in Article 370 (3) with "Legislative Assembly of the State.”
At the time of rescinding Article 370, J&K was under the President’s rule (which means imposition of Article 356), in place since December 2018 after the expiry of six months of Governor’s rule which had come into effect after the BJP withdrew support from its coalition partner, the People’s Democratic Party (PDP) in June 2018.
This meant that legislative powers of the state were effectively in the hands of the President which in effect made it possible for them to offer concurrence on J&K’s behalf.
The 'Untrammelled Powers’ of the President
These specifics were most hotly discussed in the Supreme Court during the hearing.
This takes us back to Sibal’s words in the courtroom, questioning whether the Parliament can enjoy the competence to declare itself a Constituent Assembly. “So you had to have the recommendation of the Constituent Assembly before you could efface 370,” Sibal said. “That’s what the Constitution makers themselves thought in 1950. And that operated till 6 August. How could it change?”
In response, the CJI asked what would happen if the Constituent Assembly which alone could offer a recommendation to disable the provisions of Article 370 ceased to exist.
“That's the point. The President can't issue such a notification,” Sibal answered. The CJI, however, wondered if the "operative part of (Clause) 3” still continued, the dissolution of the Constituent Assembly notwithstanding.
Drawing attention to clauses Clauses (b), (c), and (d) in Article 370, the CJI pointed out that "…the whole area of concurrence and consultation is confined to the entries of the Union and the Concurrent list. That's clear from the scheme. The President is given an untrammelled power to specify which are the provisions of the Constitution which apply to J&K.”
"Are you saying the President has blanket powers?” Sibal asked. “Can the will of the people of J&K be caged or silenced in this fashion,” he questioned.
Is Article 370 Not Sacrosanct?
On the second day of the hearing, Sibal had argued that it was the genesis of the politics of the day which determined what kind of Constitution (a reference to special status) people wanted.
“Which is why we talk about minorities, diversity, etc in our constitution. What were we faced with in 1947? A situation where diverse communities, races, religions came together,” he said. “So, you have provisions dealing with minorities, reservations, SC/ST, etc – that's a political process. That's why our constitution is what it is today.”
The CJI, however, asserted that to "completely divorce the power of amendment from the political process inherent in the amending power would not be appropriate. Because there's no strict dichotomy between that.”
As Sibal defended the unassailability of Article 370 saying that provisions to this effect came as a consequence of "dialogue between the maharaja and constitution-makers,” the CJI questioned how one would put into place the constitutional machinery then.
"It cannot be that because there is no Constituent Assembly, you cannot at all deliberate upon a proposal for abrogation or modification of Article 370,” the CJI said.
When Sibal argued that in absence of the Constituent Assembly's recommendation, Article 370 couldn't have been nullified, the CJI responded, “So, according to you, the power is completely lost once the J&K Constituent Assembly comes to an end,” he asked. Sibal said that, speculatively, there is “some power available – it may be (Article) 368.”
Justice Khanna then questioned whether Article 368 could amend Article 370 in the first place. However, the CJI intervened saying once it is assumed that Parliament can nullify the law, "any amendment of 370 would be subject to criticism on the ground of morality, but not power.”
(Shakir Mir is an independent journalist. He tweets at @shakirmir. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)