Team  SoOLEGAL
Summary on Constitutional Proceedings - State of Jammu and Kashmir
Team SoOLEGAL 15 Dec 2023

Summary on Constitutional Proceedings - State of Jammu and Kashmir

Introduction:

Background:

Article 370 of the Indian Constitution established special governance arrangements for the State of Jammu and Kashmir. Constitutional Orders 272 and 273, issued during a proclamation under Article 356(1)(b), applied the entire Indian Constitution to the State, abrogating Article 370. Simultaneously, the Jammu and Kashmir Reorganisation Act 2019 bifurcated the State into two Union territories, sparking challenges to the constitutionality of these actions.

 

Governance Dynamics:

The State government, formed by a PDP-BJP alliance, collapsed in 2018, leading to the imposition of Governor's rule under Section 92 of the Jammu and Kashmir Constitution. Subsequently, Article 356 was invoked, promulgating President's rule with specific declarations on the State's governance functions and legislative powers.

 

Parliamentary Approval:

The President's rule received parliamentary approval, and on August 5, 2019, CO 272 was issued, applying all provisions of the Indian Constitution to Jammu and Kashmir. Parliament, acting as the State legislature, recommended the cessation of Article 370's clauses. The Union Territory of Jammu and Kashmir and Union Territory of Ladakh were created through the Reorganisation Act.

 

Operationalization:

On August 6, 2019, CO 273 under Article 370(3) rendered Article 370 inoperative. Subsequently, the Reorganisation Act came into force on October 31, 2019, leading to the bifurcation of Jammu and Kashmir. The jurisdiction of the Supreme Court was invoked through Article 32 in the case of Dr. Shah Faesal v. Union of India.

 

Reference and Bench Decision:

Petitions challenging CO 272 and CO 273 prompted a plea for reference to a larger bench based on conflicting views in earlier cases. The Constitution Bench, while rejecting the plea, emphasized contextual interpretation and clarified that Prem Nath Kaul did not address the continuation of Article 370 post the Constituent Assembly's dissolution.

 

ISSUES RAISED -

a. Whether the provisions of Article 370 were temporary or acquired permanence in the Constitution?

 

b. Whether the amendment to Article 367, substituting the reference to the "Constituent Assembly" with "Legislative Assembly" under Article 370(1)(d), is constitutionally valid?

 

c. Whether the entire Constitution of India could have been applied to the State of Jammu and Kashmir under Article 370(1)(d)?

 

d. Whether the abrogation of Article 370 by the President, without a recommendation from the Constituent Assembly of Jammu and Kashmir as mandated by the proviso to Article 370(3), is constitutionally invalid?

 

e. Whether the proclamation of the Governor, dated June 20, 2018, and the subsequent exercise of power on November 21, 2018, to dissolve the Legislative Assembly are constitutionally valid?

 

f. Whether the Proclamation issued by the President under Article 356 on December 19, 2018, and the subsequent extensions are constitutionally valid?

 

g. Whether the Jammu and Kashmir Reorganisation Act 2019, bifurcating the State into two Union Territories, is constitutionally valid, considering the provisos to Article 3 requiring legislative views and consent?

 

h. Whether, during the tenure of a Proclamation under Article 356 and when the Legislative Assembly is dissolved or in suspended animation, the conversion of the status of the State of Jammu and Kashmir into a Union Territory is a valid exercise of power under Article 1(3)(a) and Article 1(3)(b) of the Constitution?

 

ARGUMENTS -

PETITIONERS P.O.V-

The petitioners challenge the Governor's Proclamation under Section 92 of the Constitution of Jammu and Kashmir, dated 20 June 2018, on the grounds of its asserted voidness. They assert that the requisite pre-condition, namely the Governor's satisfaction that the State government cannot function in accordance with the Constitution, was not met. The imposition of Governor's rule is deemed a political maneuver intended to ultimately abrogate Article 370. Criticism is also directed towards the successive imposition of President's rule, seen as undermining the Section 92 scheme and constituting a fraud on the constitutions, orchestrated by the Union Government, the Governor, and the President for unconstitutional ends.

 

The President's Proclamation under Article 356 dated 19th December 2018 is contested as void ab initio. The petitioners argue that it lacked a basis, as the Governor's report indicating the failure of constitutional machinery was not presented before Parliament, thus violating procedural norms. Emphasis is placed on the unilateral exercise of powers under Article 356 setting a dangerous precedent that could extend to other states, undermining the federal structure.

 

Concerning Article 370, the petitioners advocate for three modes of cooperation between the Union and Jammu and Kashmir, emphasizing autonomy, consent, and asymmetric federalism. They challenge the notion of Article 370's temporary nature, asserting it recognizes the constituent power of the people of Jammu and Kashmir, which ceased with the dissolution of the Constituent Assembly.

 

The petitioners further argue against the constitutionality of CO 272 under Article 370(1)(d), claiming it exceeds mere modification, improperly substitutes constitutional provisions, and violates the state's sovereignty. They contend that the Legislative Assembly lacked the power to give consent, and the application of the Indian Constitution lacked proper deliberation.

 

Finally, the petitioners challenge the President's concurrence in CO 272, asserting its invalidity without a functioning State Government, violating the second proviso to Article 370(1)(d). They argue that even if the President could exercise the State Government's functions under Article 356, the concurrence was a privilege, not a function, and could not be exercised by the President.

 

Regarding CO 273 dated 6 August 2019, the petitioners present multifaceted arguments, including its invalidity due to the issues raised against CO 272, lack of a valid recommendation from a competent body, and the destruction of the basis of Article 370 by unilaterally reneging on the compact with the people of Jammu and Kashmir.

 

Moving to the Reorganization Act, the petitioners argue its unconstitutionality on various grounds. They assert that the Presidential Proclamation under Article 356, which suspended provisos to Article 3, was void, rendering the suspension equally void. They contend that the Act bypassed mandatory procedures under Article 368, violated federalism, and brought permanent changes through a temporary suspension of Article 3, contrary to constitutional provisions.

 

Moreover, the petitioners argue that the Act degrades the state into a Union Territory, violating the principles of federalism and the qualitative difference between state reduction and Union Territory degradation. They highlight historical and cultural reasons for not retrograding an existing state into a Union Territory and emphasize that Article 3 cannot be used to supplant Article 368.

 

The petitioners challenge the Act's representation of the people of Jammu and Kashmir, asserting that alterations to units should come from the people concerned, not the Centre. They criticize the Rajya Sabha's lack of representativeness, and stress that changes should be initiated by the people rather than the Parliament, preserving principles of bicameralism and shared sovereignty.

 

RESPONDENTS P.O.V

The Respondents present a comprehensive argument justifying the abrogation of Article 370 and the subsequent actions in relation to Jammu and Kashmir. They assert that the process of constitutional integration of Jammu and Kashmir aligns with the integration of other territories in India, emphasizing the absence of a distinct compact between the Union of India and Jammu and Kashmir. The Respondents highlight the President's discretionary power under Article 370(1)(d), emphasizing its unrestricted nature and its alignment with the overall constitutional integration process.

 

They contend that Article 370 was designed to aid constitutional integration, similar to other states, and challenge the perception that its prolonged application distorts its original purpose. The Respondents argue that the unique considerations of border states merit distinct treatment under Article 3 and refute the claim of infringement of asymmetrical federalism or other federal features. Additionally, they deny any deprivation of rights related to representative democracy, asserting that the abrogation brings residents of Jammu and Kashmir in line with constitutional norms.

 

The Respondents emphasize Article 370's temporary nature, citing historical context, drafting history, parliamentary debates, and the gradual issuance of constitutional orders. They argue that the expansive power granted under Article 370(1) is inconsistent with it being a permanent provision. The abrogation of Article 370 is presented as rectifying historical inequalities and ensuring equal rights for the residents of Jammu and Kashmir.

 

Moreover, the Respondents challenge the petitioners' stance on the proviso to Article 370(3), contending that its operation was linked to the existence of the Constituent Assembly. They argue that the President's unfettered power under Article 370(3) persists, even without a recommendation from the Constituent Assembly. The Respondents stress that Parliament's involvement in the decision-making process is necessary for democratic representation, especially during emergencies.

 

Addressing the Reorganisation Act, the Respondents argue that Article 3 provides plenary powers to Parliament, including the conversion of a state into two Union territories. They assert that the sufficiency of material for such decisions is beyond the scope of judicial review. The Respondents contend that the actions taken are in line with the intentions of the Constitution's framers and safeguard the principles of federalism.

 

The Respondents challenge the significance of the State Constitution, asserting that it was dependent on the Constitution of India and did not establish full sovereignty. They argue that the power of the President under Article 370(3) implies the repeal of conflicting documents, ensuring the supremacy of the Constitution of India. The Respondents present Article 35-A as exceeding the scope of Article 370(1)(d), impacting fundamental rights, and conflicting with the constitutional scheme.

 

FINDINGS OF JUDGEMENT/ ANALYSIS

The court makes an comprehensive analysis of the historical and constitutional aspects surrounding the accession of Jammu & Kashmir to India. The region, known as Kashmir or Kas’mira, boasts a rich cultural history, marked by influences from various civilizations and religions, including Hinduism and Islam. The political entity of Jammu & Kashmir was established through treaties and conquests, ultimately leading to Maharaja Hari Singh's accession to India in 1947 amid complex circumstances, including tribal invasion and the Instrument of Accession (IoA).

The IoA, executed on October 26, 1947, outlined the terms of accession, with specific conditions accepted by Lord Mountbatten. This paved the way for the introduction of Article 370 in the Indian Constitution on October 17, 1949, reflecting the unique status of Jammu & Kashmir. Drafted by Gopalaswami Ayyangar in consultation with Sheikh Abdullah, Article 370 granted autonomy to the state, limiting legislative powers to the Indian Parliament on specified matters.

The Constituent Assembly of the State of Jammu & Kashmir played a crucial role in accepting the new Constitution of India on November 25, 1949, making Article 370 an integral part of the Constitution. The subsequent constitutional developments, including constitutional orders such as C.O. 10 and C.O. 48, specified the extent of constitutional provisions applicable to Jammu & Kashmir. The state also adopted its constitution in 1957, emphasizing its integral part of the Union with special provisions.

The relationship between Jammu & Kashmir and the Union underwent further changes, marked by events such as the Delhi Agreement of 1952, the dismissal of Sheikh Abdullah in 1953, and the introduction of Article 356 in 1964. The political landscape witnessed the Kashmir Accord of 1975, affirming the applicability of Article 370 and the retention of residuary powers by the state.

The historical and legal narrative presented outlines the complex developments in the relationship between Jammu & Kashmir and the Union of India, involving instruments of accession, constitutional provisions, and political agreements. The political history of Jammu & Kashmir is characterized by periods of stability and upheaval, with the 1980s witnessing increased fundamentalism and the mass exodus of the Kashmiri Pandit community.

The legal context of the current situation involves events leading up to the August 2019 parliamentary enactments. The reorganization of Jammu & Kashmir into two Union Territories on August 5, 2019, accompanied by resolutions in both houses of Parliament, is challenged for its constitutional validity. The petitioners argue that Article 370 was effectively emasculated without formal abolition through a constitutional amendment.

A series of writ petitions challenge various state actions, with oral submissions covering historical and constitutional aspects. The debates revolve around the perceived permanence of Article 370, legislative power, and the conditional nature of the President's power under Article 370(3). The legal arguments also address the alleged incompetence and mala fide nature of executive orders, emphasizing constitutional values, democracy, and federalism.

The core issue centers on altering the state's status to a Union Territory, with arguments questioning the constitutionality of such actions. The respondents present a constitutional defense, asserting that the integration of Jammu & Kashmir into the Union was complete, leaving no vestige of separate sovereignty. They argue that Article 370 never intended to be permanent and was a mechanism for gradual alignment with the rest of the country.

FINAL JUDMENT UPHELD-

The court, having conducted a comprehensive analysis, delivers a nuanced judgment on the constitutional changes in Jammu & Kashmir. The court affirms the constitutional validity of certain actions while subjecting others to scrutiny. It acknowledges the unique circumstances surrounding Jammu & Kashmir's integration into India, recognizing the legality of the Instrument of Accession and subsequent developments. The court underscores the temporary nature of Article 370, emphasizing its role as a transitional provision facilitating the gradual alignment of the state with the rest of the country.

In particular, the court scrutinizes Constitutional Order 272 (C.O. 272) issued on August 5, 2019, which extended the entire Indian Constitution to Jammu and Kashmir. While acknowledging the President's power under Article 370(3), the court deems the modification under C.O. 272, especially the addition of Article 367(4)(d), an improper amendment of Article 370(3). The court rejects arguments necessitating concurrence from the state government, asserting the President's unilateral authority to de-operationalize Article 370 after the Constituent Assembly's dissolution.

 

In addressing the constitutional defense presented by the respondents, the court acknowledges the completion of Jammu & Kashmir's integration into the Union. It highlights the transient nature of Article 370, asserting that its intention was never permanence but a gradual alignment with the rest of the country. The court interprets Article 370(3) as a 'safety valve,' allowing the President to act when the anticipated political compromise in Article 370(1) fails.

 

The court also examines the constitutionality of the Reorganization Act, upholding Parliament's authority under Article 3 to alter or extinguish a State. It addresses the suspension of the first proviso to Article 3 during President's rule, deeming it permissible in the absence of a functioning state legislature.

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