This article is written by Arryan Mohanty, a student of Symbiosis Law School, Nagpur. This article discusses about the case of Shah Faesal v. Union of India, where the constitutional validity of revoking Articles 370 and 35A was challenged at the Supreme Court of India.
It has been published by Rachit Garg.
The State of Jammu and Kashmir has been a point of contention for generations. It is located in the Himalayan range, which is renowned for its natural beauty across the world. whether it is a result of a political, social, terrorist, or danger from a foreign force. Although the three regions of J&K—Jammu, Kashmir, and Ladakh—are demographically distinct from one another, a disruption in one of them has affected the entire state.
The conflict between India and Pakistan for this region of Kashmir has been going on for a longest and is the most serious. Numerous bilateral and international attempts to settle the problem have fallen short. Both nations have gone through several hot and cold wars that have affected their bilateral relations. India has often tried to use force to bolster its control of Kashmir, but Pakistan has continuously opposed this.
Pakistan supports Kashmiris’ right to self-determination under the UN Resolution of 1948–49. Articles 370 and 35A, which grant Jammu and Kashmir special status, were cancelled by the Central Government on August 5, 2019, and the state was divided into two union territories, namely Jammu and Kashmir and Ladakh.
Due to its long history of political and social unrest, Kashmir has received a special status under Articles 35A, which was implemented by Presidential order in 1956, and 370, which was the result of a deal with the State’s first Prime Minister, Mr. Sheikh Abdullah. However, the provisions were revoked by the Central Government on August 5, 2019, and the state was divided into two union territories, namely Jammu and Kashmir and Ladakh.
However, this decision of the Central Government was challenged in the Supreme Court in the case of Shah Faesal v. Union of India (2020).
Jammu and Kashmir was a princely state that included, as mentioned above, the former state of Jammu and Kashmir (now known as the Union Territories of Jammu & Kashmir and Ladakh), Pakistan-occupied Kashmir (Azad Kashmir and Gilgit-Baltistan), and Akshai Chin (which China captured in the 1962 war). During the Treaty of Amritsar in 1846, the British government handed Maharaj Gulab Singh Jammu and Kashmir and treated it as a princely state. Jammu and Kashmir had legal protection from 1912 to 1932. British India was divided into India and Pakistan as the British prepared to leave.
When both countries became independent, neither of the two countries no longer had any influence over Jammu and Kashmir. When India refused to sign the standstill agreement, Maharaja Hari Singh, the erstwhile ruler of the princely state, signed it with Pakistan. However, Muhammad Ali Jinnah dispatched Muslim tribes from Pakistan to fight Maharaja Hari Singh and the inhabitants of J&K in October 1947. Maharaja Hari Singh decided to join J&K in India to safeguard his state, which is how Article 370 came into being. J&K was divided, with two-thirds going to India and one-third to Pakistan. Article 370, which gives J&K a special status, is only temporary. J&K is exempt from all of the Constitution’s provisions that apply to other Indian states.
It’s interesting to note that Dr. BR Ambedkar, the chairman of the Constitution Drafting Commission, declined to write Article 370. However, Sheikh Abdullah of Kashmir was invited to prepare it in 1949 by then-Prime Minister Jawaharlal Nehru. But in the end, Gopalaswami Ayyangar drafted Article 370. The Indian Constitution’s Part XXI, or “Temporary, Transitional & Special Provisions,” is where this article is contained.
The State of Jammu & Kashmir is given special status under the “temporary arrangement” of Article 370 of the Indian Constitution. The Article is a temporary provision that is included in Part XXI of the Indian Constitution, which is titled “Temporary, Transitional and Special Provisions.” The State of Jammu and Kashmir has been granted a special status as a result of Article 370. Through this Article, various Legislative Acts of the Union and the clauses in the Indian Constitution that are applicable in other States do not apply to the State of Jammu and Kashmir. The State of Jammu and Kashmir has complete jurisdiction over 94 of the 97 items on the Union list through this article; the remaining three are defence, foreign policy, and communication.
While the Parliament requires state assent before any additional laws about the remaining 94 items on the Union list can be applied. As a result, the laws governing citizenship, property ownership, and fundamental rights are all different for State residents than they are for Union citizens. Indian citizens who are not the State’s Permanent Residents are prohibited from buying land or other property in Jammu and Kashmir as a result of this Article.
According to the Article, the President of India cannot use Article 352 to declare an emergency in the State of Jammu and Kashmir without first consulting the Governor of that state. The provision in Article 360 that empowers the President to declare a financial emergency and reduce salaries and allowances does not apply in the State either. Only in cases of war and external aggression may the President of India declare an emergency under Article 352. Additionally, Article 356 does not mention the Governor’s rule but does discuss the implementation of the President’s rule. Therefore, the Union Government lacks the authority to suspend the Constitution of Jammu and Kashmir if the necessary instructions are not followed.
Sheikh Mohammed Abdullah drafted the provisions of this Article in late 1947. Although the Centre disregarded it, he had also urged that the Article shouldn’t be included in the Indian Constitution as a temporary measure but should instead have a permanent nature.
In contrast to other princely States, the State of Jammu and Kashmir was unwilling to embrace the Indian Constitution and was unyielding in its determination to act only under the stipulations of Clause 7 of the Instrument of Accession. In the Indian Constituent Assembly, Gopalaswami Ayyangar, a Minister without Portfolio in the Nehru administration, moved the bill to add Article 370 to the Indian Constitution.
Other factors that contributed to the creation of the Article included the state’s political unrest, a United Nations resolution calling for a vote on the state of Jammu and Kashmir’s accession to India, the establishment of control over the state’s territories by both the Indian and Pakistani governments, and the fact that Jammu and Kashmir are governed by a separate constitution.
Political reasons have led to the public discussion of the Article 370 issue. After a few months or a few years, it begins to come into focus. The nation’s right-wing political parties have been calling for its repeal since the State did not benefit from it, but on the other hand, it stoked anti-national feelings in the Kashmir valley. The sooner it is done away with, the better for the State and its citizens. Instead, Jammu and Kashmir National Conference and National Conference, two regional political parties in the State, have been supporting its continuation because it serves as a link between this State and the Union of India.
The Jammu and Kashmir Legislature is given complete discretion to determine who constitutes a “permanent resident” of the State and to grant them special privileges concerning employment with the government, the purchase of real estate within the State, subsidies, and other public welfare policies. This discretion is granted under Article 35A of the Constitution. No Act of the legislature falling under its purview may be subject to a test to determine if it violates the Constitution or any other law of the land, according to the provision. According to Article 35A of the Indian Constitution, Jammu and Kashmir are permitted to differentiate between permanent and temporary residents when it comes to the acquisition of real estate, settling in the State, employment prospects, and several other factors. The historical basis for the distinction between permanent and non-permanent residents can be found in Kashmiri Pandits’ complaints about the incorporation of Punjabis into State administration. This complaint ultimately resulted in Maharaja Hari Singh’s 1927 law, which sought to give enduring residents certain rights, particularly in the acquisition of land. Representatives of Jammu and Kashmir felt that the legislation on permanent residents needed to continue to safeguard their unique privileges regarding the rest of the Union of India due to the extraordinary circumstances surrounding the accession to India and the assurance of special status.
One result of the Delhi Agreement was Article 35A. The State legislature was able to define “permanent residents” and grant them exceptional rights as a result. Additionally, it shields such laws from being declared invalid because they violate any provision of Part III of the Constitution, and restrict, or abridge any rights granted to other Indian citizens.
The appendix to the main article, Article 35A, was implemented through a Presidential decree that had to be presented to the Parliament within six months of implementation. On the recommendation of the Nehru Cabinet, Article 35A was inserted into the Constitution by Presidential Order in 1954, signed by the then-President of India, Dr.Rajendra Prasad. The contentious Constitution (Application to Jammu and Kashmir) Order of 1954 was the result of the 1952 Delhi Agreement between Nehru and Sheikh Abdullah, the first prime minister of J&K, which gave Indian citizenship to J&K’s “State subjects.” Under Article 370 (1) (d) of the Indian Constitution, the Order was issued. This provision gave the Head of State the authority to make certain “exceptions and changes” to the Indian Constitution to benefit Jammu and Kashmir’s “State subjects.” To demonstrate the preferential treatment the Indian government gave to the “permanent residents” of J&K, Article 35A was introduced to the Constitution.
The Indian populace is very divided regarding Article 35A; many see it as a danger to the sovereignty and integrity of India. Article 35A was challenged in 2014 by the NGO “We the Citizens” before the Supreme Court because it had not been added to the Indian Constitution by an amendment made under Article 368, which outlines the process for making a constitutional modification. A Presidential Order was also never presented to the Parliament as required by law within six months of its enforcement. It further claims that Jammu and Kashmir were never given any special status in the Constitution and that four delegates from the State participated in the Constitution-writing process as members of the Constituent Assembly. As stated in the Chapter’s title, Article 370 was only intended to be a “temporary provision” to bring order to J&K and support the state’s democratic system. As it causes separation and “class within a class of Indian nationals,” Article 35A is detrimental to India’s integrity and “very spirit of oneness.” According to Articles 14, 19, and 21 of the Constitution, it is unconstitutional to prevent residents of other Indian States from obtaining employment or purchasing real estate in J&K.
In a different instance, the Supreme Court ruled that Article 35A restricts a native women’s basic property rights if she marries a man who does not possess a permanent residence status. Those woman’s offspring are also refused a certificate of permanent residency, making them appear to be illegitimate. According to the Supreme Court, a Constitution Bench may consider whether or not Articles 35A and 370 are constitutional. In contrast, if a native man marries a woman who owns a permanent resident certificate, she will likewise get that status. This type of provision demonstrates how biased against women the legislation is. One could argue that such a sex-based discriminatory interpretation of the law violates the fundamental equality guaranteed by Articles 14 and 15 of the Indian Constitution.
Judicial pronouncements on the special status
The addition of Article 370 to the Indian Constitution and the ensuing presidential orders accommodated Jammu and Kashmir’s distinctive place in Indian politics. These Presidential Orders, issued under clause 1(d) of Article 370, changed the Constitution of India’s applicability to the State of Jammu & Kashmir to accommodate its unique requirements and circumstances. The Supreme Court has frequently been asked to interpret the essence and scope of Article 370 since the Constitution (Application to Jammu and Kashmir) Order, 1954, to determine its nature, character, and applicability.
The Hon’ble Supreme Court of India first heard the cases in Puranlal Lakhanpal Vs. President of India & Ors (1961), which was decided in 1955. In that case, the court’s writ jurisdiction was used to define the word modification in Article 370(1)(d). The Supreme Court stated that the phrase “modification” would also include the President’s authority to change a constitutional provision in its application to Jammu and Kashmir. According to the Supreme Court’s ruling, the President of India has the authority to declare that a specific article of the Constitution does not apply to the State. We believe that when the word “modification” was used in Article 370 (1) of the Constitution, the aim was for the President of India to have the authority to change the Constitution’s provisions to make them more appropriate for the State of Jammu & Kashmir. The Court further stated that modification would entail the ability to make significant changes. The phrase “modification” is used in Art. 370 (1) must be given the broadest interpretation possible in the context of the Constitution, and in that sense, an amendment is included. It stated that there is no justification for limiting the term “modifications” as used in Article 370 (1) to only such modifications that do not include any significant alteration.
The Jammu & Kashmir Preventive Detention Act, 1964, was challenged in several petitions brought before the Supreme Court, the first of which, the Puranlal judgement, marked the commencement of. Clause (c) was added to Article 35 when it became applicable to the State, making it clear that the rules governing preventive detention in J&K cannot be challenged for violating the fundamental rights protected by the Indian Constitution.
Habeas Corpus Petitions were submitted to the Supreme Court in the cases of Puranlal Lakhanpal & Abdul Ghani v. State of J&K (1970), both of which alleged that the detentions made under the aforementioned Act violated Part III of the Indian Constitution. In all instances, the President’s authority under Article 370 (1)(d) of the Indian Constitution was used as a rationale for upholding the Act’s legality. Even though the Act appeared to violate the petitioners’ rights under Article 21 of the Indian Constitution, they were left without a remedy. Five years was initially allotted under the contentious Act of 1964. However, the Constitution (Application to Jammu and Kashmir) Amendment Order, 1959 and the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1964 periodically extended its enforcement and validity for 10 and then 15 years respectively.
When this was contested in Sampat Prakash v. State of J&K (1969), the Apex Court rejected the petitioner’s request for relief and stated that: “Due to the applicability of the rule of interpretation outlined in Section 21 of the General Clauses Act, the power to modify described in clause 1(d) of Article 370 also includes the power to subsequently vary, alter, add to, or revoke such an order. It is difficult to understand how the extension of the period of immunity made by subsequent amendments can be said to be invalid as constituting an infringement or abridgment of the provisions or part of the Order of 1954 if the Order of 1954 is not invalid on the grounds of infringement or abridgement of fundamental rights under Part III.” The Court in Sampat Prakash also made a critical point about Article 370’s very existence. It stated that the State’s Constituent Assembly may only recommend that the Article be removed. Since the said Assembly did not make such a suggestion before it ceased to exist after 1957, it can be inferred that it did not intend to request that the said Article be revoked. According to Article 370 (3), the provision will remain in effect until and until the President issues a directive to the contrary, acting on the suggestion of the State’s Constituent Assembly. In actuality, neither the President nor the State’s Constituent Assembly issued an order proclaiming that the article would no longer be in effect. Contrarily, it appears that the State’s Constituent Assembly recommended that the article be implemented with a change to be included in the Explanation to clause (1) of the Article. This makes it abundantly clear that the State’s Constituent Assembly did not want this article to stop being in effect and, in fact, expressed its support for its continued application by recommending that it only be applied with this modification, as the Hon’ble Supreme Court noted in Sampath Prakash case.
Despite the criticisms expressed in Sampat Prakash, the Supreme Court went on to interpret the clause in Mohd Maqbool Damnoo Vs. State of J&K (1972) and SBI v. Santosh Gupta (2017) in a way that opened the door for potential attempts to change the State’s constitutional status. In Mohd Maqbool, the Hon’ble Supreme Court upheld the legality of a 1965 Presidential Order that added language to Article 367 (4) stating that references to Sadar-I-Riyasat should be interpreted as Governor. The court also stated that the Governor is qualified to give his or her consent on behalf of the state government, as specified in Article 370, as well as for other tasks outlined in the Jammu and Kashmir Constitution. The petitioner’s claim that it was a backdoor alteration to Article 370 was rejected by the Constitution Bench. Sadar-i-Riyasat for the State no longer existed, according to the Hon’ble Supreme Court, who further stated that the alteration reflected the preexisting constitutional status. The Hon’ble Supreme Court concluded that there was no need to express an opinion on whether Article 370 may be changed using Article 370(3). The bench stated, “We do not offer a view on the issue of whether Art. 370 (3) can now be used to change the terms of Art. 370(1) and (2) because it does not concern us. A change to Article 370(1) is no longer a worry. It had stopped operating since Jammu and Kashmir’s Sadar-i-Riyasat was no longer present.”
Furthermore, the Supreme Court in the Santosh Gupta case emphasised that the SARFAESI Act applied to J&K while highlighting the lack of any remaining state sovereignty outside of the Indian Constitution and the State’s Constitution, which is subordinate to the Indian Constitution. The Jammu & Kashmir State is and will continue to be an integral part of the Union of India, as stated in Section 3 of the Jammu & Kashmir Constitution and Article 1 of the Indian Constitution, the Supreme Court noted. The Court further stated that citizens of India are first and foremost Jammu & Kashmir residents. “Under the Constitution (Application to Jammu and Kashmir) Order, 1954 and the subsequent Orders, the Parliament did not require the State Government’s consent to legislate concerning matters included in the Union and Concurrent list in Schedule Seven of the Indian Constitution”, the bench made up of Hon’ble Justice Kurian Joseph and Hon’ble Justice R. F. Nariman stated. “All items included in List I of the Seventh Schedule to the Constitution of India that were stated by the Constitution (Application to Jammu and Kashmir) Order, 1954 would grant Parliament sole legislative authority over the issues covered by those entries.”
The bench also said, “it has been suggested that parliamentary legislation should apply to the State of Jammu & Kashmir under Art. 370, the State Government would also need to approve it. This is a gross misinterpretation of Art. 370, which makes plain that no further cooperation is required after a topic in either the Union List or the Concurrent List is designated by a Presidential Order.”
Revocation of the special status
The Constitution (Application to Jammu and Kashmir) Order, 2019, was promulgated by the President of India on August 5, 2019. This order cancels the special status granted to Jammu and Kashmir under Article 370, which stated that the state was exempt from certain Constitutional requirements that applied to other states. The Constitution (Application to Jammu and Kashmir) Order, 1954 is superseded by this order. Also, the proclamation stated that: to the extent that it relates to the State of Jammu and Kashmir, the articles of the Constitution, as altered from time to time, shall apply with the following exceptions and modifications: The following sentence will be added to Article 367:
“(4) For this Constitution as it applies to the State of Jammu and Kashmir —
(a) references to this Constitution or its provisions are to be understood as references to the Constitution or its provisions as they apply to the aforementioned State;
(b) references to the person currently designated by the President as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the suggestion of the Legislative Assembly of the State for the time being in power, must be interpreted as references to the Governor of Jammu and Kashmir;
(c) references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers must be read as references to the Government of the said State; and
(d) The phrase “Constituent Assembly of the State referred to in clause (2)” in proviso to clause (3) of Article 370 of this Constitution must read “Legislative Assembly of the State.”
The relationship between Jammu & Kashmir and the rest of India is transformed by completely repealing Articles 370 and 35A. Additionally, it opens the way for Article 35A to be repealed, which would permit Indian citizens to buy land and establish themselves permanently in J&K. The politics of J&K will undoubtedly be significantly impacted by this abrogation. The administration is of the firm conviction and belief that eliminating these articles from the Constitution will have a good influence on people in J&K and Ladakh, who will then enjoy the same rights and advantages as other citizens of the nation. The fundamental rights outlined in parts III and IV will now be relevant to the state of J&K. On the economic level, the revocation provides state residents access to more work options that can aid in reducing poverty. Now, new infrastructure and industries might be built. Property values in the real estate market as a whole will rise. A new life awaits the almost 21,000 West Pakistani refugees. All government programmes would be applicable in J&K, and plans are in the works to improve students’ access to scholarships and higher education, especially for the state’s underprivileged youth.
A separate bill, the Jammu and Kashmir Reorganisation Bill, 2019, was introduced in addition to the order removing Jammu and Kashmir’s special status, to split the state into the Union Territories of Jammu and Kashmir (with a legislature) and Ladakh (without a legislature), with effect from October 31, 2019. The bill bifurcates the State of Jammu and Kashmir into the Union Territory of Jammu and Kashmir, which has a legislature, and the Union Territory of Ladakh, which doesn’t, would result in the two distinct union territories.
The remaining portions of the current state of Jammu and Kashmir would be included in the Union Territory of Jammu and Kashmir, while the Kargil and Leh districts will be a part of the Union Territory of Ladakh. The bill calls for 107 Legislative Assembly seats in Jammu & Kashmir. 24 of the 107 seats will remain vacant since they are located in Pakistan-occupied Kashmir (POK).
The President will select an administrator to lead the Union Territory of Jammu and Kashmir. The administrator will be referred to as the Lieutenant Governor, just like the New Delhi Union Territory. On the other hand, the President will appoint a Lieutenant-Governor to lead the Union Territory of Ladakh. Any region of the Union Territory of Jammu and Kashmir may have legislation passed by the Legislative Assembly. All items in the State List of the Constitution, save “Police” and “Public Order,” and all items in the Concurrent List that pertain to Union Territories are covered by these laws. The Union Territory of Jammu and Kashmir’s Lieutenant Governor will get assistance and counsel from a Council of Ministers. The size of the Minister’s council shall not exceed ten percent of the entire membership of the Assembly.
The Chief Minister shall advise the Lieutenant Governor of all Council decisions, much like the Chief Ministers of Delhi and Puducherry do. The common high court for Ladakh and the Jammu and Kashmir Union Territories will be the Jammu and Kashmir High Court. In addition, the government of the Union Territory of J&K would get legal guidance from an Advocate General who would be nominated.
153 state legislation in Jammu & Kashmir has also been repealed as a result of Article 370. This includes removing limitations on leasing land to transient Jammu and Kashmir people. The Union Territories of Jammu & Kashmir and Ladakh will be subject to 106 legislation from the central list as of a date determined by the federal government. Among the new laws is the Aadhar Act of 2016, the Right to Education Act of 2009, the Right to Information Act of 2005, and the Indian Penal Code of 1860.
Facts of the case
Shehla Rashid, a graduate of JNU, and Shah Faesal, a retired IAS officer, have petitioned the Supreme Court to reverse the decision to scrap Jammu and Kashmir’s special status and split it into two Union Territories. In addition to the Jammu and Kashmir Reorganisation Act of 2017, which divided the state into the Union Territories of Ladakh, which comprises the Kargil and Leh regions, and Jammu and Kashmir, Faesal and others also challenged the presidential order that removed Jammu and Kashmir’s special status.
On August 5, 2019, the President of India issued the Constitution (Application to Jammu and Kashmir) Order, 2019 following the authority granted by Clause (1) of Article 370 of the Constitution. As a result, the Indian government changed Article 370. (not revoked it). Under Article 370, the Jammu & Kashmir Constituent Assembly was given the authority to recommend which clauses of the Indian Constitution should apply to the state. The J&K Constituent Assembly was terminated once the state constitution was written. According to Clause 3 of the Constitution, the President of India has the authority to alter the terms and application of Article 370. Article 35A, which derives from Article 370, was adopted in 1954 in response to a request by the J&K Constituent Assembly. It was done so by Presidential Order. According to Article 35A, Jammu and Kashmir’s legislature has the power to specify who is considered a permanent resident of the state and what rights and privileges they are entitled to. The Constitution’s Appendix I contains it.
The 2019 Constitution (Application to Jammu and Kashmir) Order has taken the place of the Presidential Order of 1954. The Jammu and Kashmir Reorganisation Bill, 2019 was then passed by Parliament, dividing Jammu and Kashmir into the new Union Territories (UTs) of Jammu & Kashmir and Ladakh. The transformation of a state into a UT is unique. The union territory would keep five of the six Lok Sabha seats that the state of Jammu & Kashmir currently holds, while Ladakh would receive one. Like Delhi and Puducherry, the UT of Jammu and Kashmir will have an Assembly.
The anthem, flag, and constitution of the state of Jammu & Kashmir will no longer exist. The inhabitants of Jammu and Kashmir would not be eligible for dual citizenship. Residents of the future union territory of Jammu and Kashmir will have access to the Fundamental Rights of the Indian Constitution because it will be governed by that document. Now also applicable is Article 360, which permits the declaration of a financial emergency. Jammu and Kashmir would be subject to all legislation enacted by Parliament, including the Right to Information Act and the Right to Education Act. The Indian Penal Code will take the place of the Jammu & Kashmir Ranbir Penal Code. Article 35A, which results from the demands of Article 370, is void and unenforceable. Article 35A’s discriminatory provisions would no longer be legitimate as Jammu and Kashmir are now covered by all of the Constitution’s provisions, including the chapter on fundamental rights, according to the Presidential Order. J&K was given autonomy by introducing Article 370 of the Indian Constitution. It did not, however, address the situation of Kashmiris, who have lived through two generations of war and bloodshed. The distance between Kashmir and the rest of the nation grew more comprehensive as a result. Three judges, led by then Chief Justice Ranjan Gogoi, heard the petitioner before referring the matter to a bigger bench. The matter was then assigned to a constitutional bench composed of Justices NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai, and Surya Kant.
Is the government’s decision to abolish Articles 370 and 35A constitutionally valid?
The petition, which asserts that Jammu and Kashmir is a constituent state of India, argues that the Union of India’s unilateral action is not only unconstitutional but also a direct assault on the concepts of “federalism,” “democracy,” and “the rule of law,” all of which are safeguarded and guaranteed by the provisions of the Indian Constitution, including Part III and IV.
According to the petitioners, Jammu and Kashmir needed a suitable political settlement as a result of the militancy in the Kashmir Valley. Recent decisions made by the Union of India, in the petitioner’s opinion, contravene the revered ideals of “federalism,” “democracy,” and “the rule of law” and cannot and do not offer such a remedy. “The federal polity formed and carried out under the Indian Constitution is sui generis, since it takes into account the particular needs and histories of the many States.” As a result, particular policies were created for many states. Article 370 “represents one such special connection between India and the people of the State of Jammu and Kashmir,” according to the petitioners in their case before the Supreme Court.
According to the appellants, the Supreme Court has previously ruled that the system established by Article 370 is essentially permanent. The petitioners contend that the Presidential Orders of August 5 and 6, 2019 are invalid since the participation of the state government was gained unlawfully for the following reasons:
- The government of Jammu and Kashmir “consented” to the President’s order, which was made according to Article 370(1) of the Constitution, even though the state does not have a popularly elected government as defined by the Constitution.
- According to Article 356 of the Indian Constitution, as amended by the 1954 Order, the state of Jammu and Kashmir has been governed by the President of India since June 2018. All routine decisions of the state government are made by the Governor, who is a representative of the President under the presidential proclamation issued under Article 356(1)(a). Because the Governor is just operating in the place of a democratically elected government as an interim step according to Article 356 of the Constitution, his cooperation with the State administration does not reflect the wishes of the people.
- In the Mohd Maqbool Damnoo case, the Hon’ble Court’s Constitution Bench held that the state of Jammu & Kashmir has the discretion to pick who will provide consent on its behalf. Because Jammu and Kashmir have established themselves as an elected republican government under the requirements of the Jammu and Kashmir Constitution, the only authority whose cooperation would be lawful under Article 370(1)(d) is the permission of an elected government.
- Any constitutional functionary under the Indian Constitution is obligated to consult with a broad base of residents and to consider offering agreement for such a move after the state of Jammu and Kashmir has decided to be represented by an elected republican form of government under its Constitution. In addition to being a requirement of Article 14 of the Constitution, which mandates that the state takes into account all pertinent facts before such concurrence, the Indian Constitution also requires this in practice. Therefore, in this case, using authority to agree to a significant change to Article 370(3) would be a violation of the Constitution’s fundamental principles.
- In addition to being a requirement of Article 14 of the Constitution, which mandates that the state takes into account all pertinent facts before such concurrence, the Indian Constitution also requires this in practice. Therefore, in this case, using authority to agree to a significant change to Article 370(3) would be a violation of the Constitution’s fundamental principles.
The Constitution’s democratic principles are violated when the state of Jammu and Kashmir is given the correspondence in the absence of a popularly elected government and when, under President’s Rule, the concurrence of the State is replaced by the concurrence of the Governor, oblivious to the requirement that important political decisions come from a popularly elected government. It is also a breach of Article 356 of the Constitution and a fraud on the Indian Constitution, similar to the abuse of the executive branch’s ability to make laws through the issuance of ordinances, which has also been ruled to be against the law.
The petitions challenging the constitutional validity of the Center’s decision to abolish Article 370 were not referred to a bigger bench by the Court. In Prem Nath Kaul v. State of Jammu and Kashmir (1959), the Court determined that Article 370 was temporary. However, the subsequent judgement in the Sampat Prakash case reversed the aforementioned position, recognising Article 370 as a permanent provision giving the President perpetual veto power. As a result, the Court was hearing the confined issue of the recommendation to a larger bench. The court stated that there is no contradiction between the Prem Nath Kaul and Sampat Prakash instances and that decisions cannot be read in a vacuum, independent of their facts and context. One cannot pick and choose which observations are made during a judgement to give them a particular significance.
Following the dissolution of the State’s Constituent Assembly, “the Constitution Bench did not debate the continuation or termination of the operation of Article 370 of the Constitution,” it added. This was not a matter before the Court, except for the Sampat Prakash case, in which the claim was taken directly before the Court and dismissed by it. This Court does not see any justification for interpreting the Prem Nath Kaul case in a way that conflicts with its subsequent rulings, especially when a plain reading of the judgement does not support such an interpretation.
As per the bench, in the Prem Nath Kaul case, the Court had to determine Yuvaraj’s legislative competence for passing a particular law. The enactment was passed during the interregnum period, which was after the Indian Constitution came into force but before the State of Jammu and Kashmir’s Constitution. The Constitution Bench’s opinions in this matter regarding the importance given to the decision of the State of Jammu and Kashmir’s Constituent Assembly must be read in light of these considerations. Thus according to Article 370(2) of the Indian Constitution, “Any decision made by the State Government, which was not an elected body but the Maharaja of the State acting on the advice of the Council of Ministers, which was in office under the Maharaja’s proclamation dated March 5, 1948,” would have to be presented to the Constituent Assembly for its consideration.
The State Government, as defined under Article 370, may have already made some decisions before the convening of the Constituent Assembly, which the Constituent Assembly, in its wisdom, might not agree with. According to the Court, the task of the Constituent Assembly was to further clarify the scope and ambit of the constitutional relationship between the Union of India and the State of Jammu and Kashmir. Because there are no comments in the Sampat Prakash case that contradict those in the Prem Nath Kaul case, the court decided that the matter is not per incuriam.
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