Article 370: Round-Up

This is a round-up of all the blog posts on the ICLP blog dealing with the Article 370 case, from the day of the abrogation (5th August, 2019) to the judgment (11th December, 2023), and its consequences. These posts do not cover the various issues regarding internet shut-downs and habeas corpus, which also arose as a consequence of the events of August 5, 2019: these will be compiled in a separate round-up.

For readers interested in engaging with the detailed legal arguments, please refer to the archive of written submissions.

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The Day of the Abrogation:

1. The Article 370 Amendments: Key Legal Issues (August 5, 2019).

After the Abrogation:

1. Article 370: The Constitutional challenge (August 13, 2019) (by Niveditha K).
2. Article 370: A Counterpoint (August 15, 2019) (by Pranay Lekhi).
3. Article 370 – Dealing with Sampat Prakash and Maqbool Damnoo (August 15, 2019) (by Amlan Mishra).
4. One Nation, One Flag, One Constitution? – I (September 25, 2019) (by Shrimoyee Ghosh).
5. One Nation, One Flag, One Constitution? – II (September 26, 2019) (by Shrimoyee Ghosh).

The Interregnum:

1. Jammu and Kashmir’s New Domicile Reservation Policy – Some Constitutional Concerns (April 4, 2020).
2. Deepening Fait Accompli: The Supreme Court’s J&K Delimitation Judgment – I (March 5, 2023) (by Ashwin Vardarajan).
3. Article 370 and a Governor’s Interview (April 16, 2023).

The Hearing:

1. In Re Article 370 and Problems of Federalism (July 13, 2023) (by Jai Brunner).
2. Constitutional Pluralism in the Article 370 Hearings (October 20, 2023) (by Kushagr Bakshi).

The Judgment:

1. Federalism, “Permanent Changes” and the Article 370 Judgment: An Interpretive Note (December 12, 2023).
2. The Supreme Court’s Article 370 Judgment – Unilateral Declarations and Self-concurrence as Constitutional Practice (December 12, 2023) (by Kieran Corriea).
3. The Supreme Court’s Article 370 Judgment – II: On the Constituent Power of Jammu and Kashmir (December 16, 2023) (by Ashwani Singh).
4. The Supreme Court’s Article 370 Judgment – III: On the (Ab)Uses of History (December 17, 2023) (by Arvind Abraham).
5. The Supreme Court’s Article 370 Judgment – IV: Emergency, President’s Rule, and Constitutional Change (December 17, 2023) (by Kieran Correia).
6. The Supreme Court’s Article 370 Judgment – V: On the Extinction of Statehood (December 21, 2023) (by Kieran Correia).
7. The Supreme Court’s Article 370 Judgment – VI: On Representative Democracy (December 22, 2023) (by Krishnesh Bapat).
8. The Supreme Court’s Article 370 Judgment – VII: Explaining Incoherence (December 23, 2023) (by Ashwani Singh).
9. The Supreme Court’s Article 370 Judgment – VIII: On “Integration” and Ideological Choices (December 29, 2023) (by Kartik Kalra).

Guest Post: The Supreme Court’s Article 370 Judgment – VII: On “Integration” and Ideological Choices

[This is a guest post by Kartik Kalra. It is the concluding post in the blog series analysing the Supreme Court’s Article 370 judgment.]

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This month, the Supreme Court delivered its judgment in In Re: Article 370 of the Constitution, holding valid the Central Government’s abrogation of Article 370. Article 370 created three avenues of participation for the erstwhile State of Jammu & Kashmir (“J&K”), in actions the Union may take concerning its constitutional status: the President’s (that is, the Central Government’s) application of constitutional provisions to the State; Parliament’s power to legislate for the State; and the Central Government’s power to declare Article 370 inoperative. The Court, based on its conceptualization of Article 370 as a mode of pursuing J&K’s “constitutional integration” with the Union (¶342, Chandrachud, CJ.), and as a mode of bringing the State “on par with other States in [the] process of phased integration” (¶64, Kaul, J.), held that these objectives would – through Article 370’s removal – mark a “culmination of the process of integration” (¶420, Chandrachud, CJ.), and would, therefore, align with the integrationist objectives of Article 370. The Court has, per majority, laid down the following propositions:

1. “Recommendation” of the Constituent Assembly: Article 370(3) – which requires the J&K Constituent Assembly to recommend that the Article cease to operate before the Central Government declares so – does not imply that the Article dons a character of permanence due to the Constituent Assembly’s dissolution, and confers, instead, unilateral authority on the President to declare the Article inoperative (¶346, Chandrachud, CJ.; ¶74-5, Kaul J.; ¶7, Khanna J.).
2. Alteration of “Constituent Assembly” to “Legislative Assembly”: Article 370 can be modified only through Article 370(3), which, in turn, requires the Constituent Assembly’s authorization. Article 367 – which contains interpretations and definitions – cannot be amended to define the “Constituent Assembly” as “Legislative Assembly”, for that “modif[ies] the essential character” of Article 370, which is constitutionally impermissible (¶384, Chandrachud CJ.; ¶87, Kaul J.; ¶3, Khanna J.). This, however, does not matter, for the President held the power to abrogate the Article unilaterally (see above).
3. Application of the entire Constitution to the State: C.O. 273, which applies all provisions of the Constitution to the State, is valid despite the absence of “concurrence” of the Government of J&K in authorizing such a move (as required under Article 370(1)(d)), for the effect of a declaration applying all constitutional provisions is the same as Article 370’s abrogation – which, as noted above – can be done unilaterally by the President under Article 370(3) (¶427, Chandrachud CJ.; ¶94, Kaul J.; ¶3, Khanna J.).
4. Article 3 of the Constitution: Article 3 – which requires the conferral of an opportunity on the state undergoing political/territorial transformation to “express…its views thereon” – could be dispensed with during a state emergency under Article 356, for such views carry no binding value (¶511, Chandrachud CJ.; ¶110-111, Kaul J.; ¶3, Khanna J.). Section 3 of the Jammu & Kashmir Reorganization Act, 2019, which creates the Union Territory of Ladakh from the erstwhile State of Jammu & Kashmir, is, therefore, valid despite the absence of the views of Jammu & Kashmir’s State Legislature. The validity of the demotion of the erstwhile state of Jammu & Kashmir to a Union Territory was not adjudged in reference to Article 3, for the Court was “alive to the security concerns in the territory”, and that the Union promised to restore Jammu & Kashmir’s statehood soon. (¶503, Chandrachud, CJ.)

Some aspects of these propositions have been discussed in seven previous essays on this blog – Kieran Correia has proposed the impropriety in invoking the President’s power of unilateral abrogation under Article 370(3) as a justification for dispensing with the State Government’s “concurrence” under Article 370(1)(d); Ashwani Singh has proposed that “constituent power” of the people of J&K is, in fact, perpetually alive – and the possible creation of an institution exercising such constituent power in the future meant that the risk of stultification due to the previous Constituent Assembly’s dissolution was overestimated; and Arvind Abraham has proposed that a historicized account of the constitutional relationship between J&K and the Union indicates that a “one-size-fits-all” approach to integration – which the Court identifies as Article 370’s purpose – was never on the cards at the moment of enactment.

In this essay, I propose that the Court imputes to Article 370 a singular objective of facilitating J&K’s complete constitutional integration with the Union, which triumphs over all other objectives of Article 370, especially those seeking the protection of J&K’s autonomy. The pursuit of integration constitutes the Court’s overall interpretive fulcrum – the vesting of unilateral abrogating power with the Central Government, the negligible value of a “recommendation”, and the application of the entire Constitution to the erstwhile State without a semblance of its participation – all are justified in pursuit of J&K’s constitutional integration. I make this argument in the following manner – first, I discuss the circumstances causing the Court to invoke the logic of integration ad-nauseum in its interpretation of Article 370, noting the absence of alternatives – given the apparent invalidity of C.O. 272’s amendment to Article 367; second, I demonstrate the application of this logic in the construction of Article 370(3), proposing its centrality to the Court’s assessment of the constitutional relationship between J&K and the Union; and third, I discuss its spillover effects on the Court’s assessment of the “recommendation” under Article 370(3), alongside the difficult coexistence of the low thresholds attributed both “concurrence” and “recommendation”.

Different Approaches to Disregard Consent – Kaul, J. and Chandrachud, CJ. on Article 370(3)

Chandrachud, CJ. and Kaul, J., as noted above, held that any modification of Article 370 – even for the purposes of its abrogation – must occur only through Article 370(3), which requires a prior recommendation of the J&K Constituent Assembly. C.O. 272, the constitutional order modifying Article 370(3) to enable the Article’s abrogation by interpreting “Constituent Assembly” as “Legislative Assembly”, was, therefore, invalid to this extent, for its result was a substantive modification of Article 370(3), an outcome that can be pursued only through Article 370(3) (¶382-3, Chandrachud, CJ.). The Court rejected the Union’s invocation of Mohd. Maqbool Damnoo v. State of Jammu and Kashmir – a case upholding an amendment to Article 367 that interpreted the term “Sadr-i-Riyasat” as it appears under Article 370(1) as “Governor” – on the ground that the Governor was the constitutional successor to the “Sadr-i-Riyasat”, and the amendment, in that case, was only clarificatory in nature, not having the effect of substantively modifying Article 370 (¶416-7, Chandrachud, CJ.). In the instant case, however, the amendment to Article 367 had the effect of substantively modifying Article 370, for there existed “myriad differences between a Constituent Assembly and Legislative Assembly”: one exercised constituent power, and the other legislative power (¶384). On this basis, therefore, C.O. 272 – to the extent it modified Article 370 through Article 367 – was invalid.

It must be noted, however, that the validity of the entire series of actions taken by the Central Government concerning J&K – from the application of all provisions of the Constitution to the State through C.O. 273, to the Jammu and Kashmir Reorganization Act, 2019 that split the state into two Union Territories – hinged on the validity of Article 370’s abrogation, for otherwise, the erstwhile J&K’s own Constitution, as well as modified provisions of the Indian Constitution as they applied to J&K, prevented the Central Government from pursuing them.

The Court had to, therefore, develop new justifications for why – despite C.O. 272’s invalid modification of Article 370 – the Article could still be validly abrogated. Chandrachud, CJ. and Kaul, J. develop four such justifications: first, the persistence of Article 370’s integrationist objectives after the Constituent Assembly’s dissolution, which required that the possibility of J&K’s complete constitutional integration not be foreclosed; second, the proviso to Article 370(3) – which required the Constituent Assembly’s recommendation to abrogate Article 370 – becoming otiose at the moment of its dissolution, conferring unilateral powers on the Central Government to abrogate the Article; third, the character of a “recommendation”, which – even if issued by the Constituent Assembly – would not have bound the President; and fourth, the consultative underpinnings of Article 370(1)(d) becoming meaningless when the entire Constitution – as opposed to individual articles – is applied to J&K. I discuss these one-by-one.

The J&K Constituent Assembly Predeceased Article 370’s Integrationist Objectives – Navigating Article 370(3)

First, the Court makes a clear ideological choice in identifying Article 370’s objectives – it holds, with substantial repetitiveness, that Article 370 was “intended to enhance constitutional integration” between the Union and the State (¶348); that it demonstrated a “gradual process of constitutional integration” (¶465); that it was meant for “constitutional integration and not disintegration” (¶342), along with many other remarks hinting at – as is clear – constitutional integration. It imputes this objective to Article 370 through a study of history, Constituent Assembly Debates, speeches of state officials in J&K and the Union, along with the marginal note and constitutional placement of Article 370 indicating its character as temporary (¶138-9; ¶143-4; ¶231-4). Further, Kaul, J. holds that Article 370 envisioned a “process of phased integration” (¶64) between the State and the Union, noting that the Article sought to achieve “complete integration but…over a period of time” (¶59).

Kaul, J. disagreed, in letter if not in spirit, with Chandrachud, CJ.’s assessment of J&K’s “internal sovereignty” being lost through Article 370. Prem Nath Kaul v. State of Jammu and Kashmir involved a jurisdictional challenge to a law’s enactment by Yuvraj Karan Singh (J&K’s monarch, recognized as the sovereign lawmaker under the J&K Constitution) based on his sovereign lawmaking powers eroding by virtue of Article 370. The Court, rejecting this argument, recognized that a semblance of sovereignty continued being vested in, and exercisable by, the Yuvraj after Article 370’s insertion in the Constitution, and references to J&K’s Constituent Assembly thereunder verified the same (¶26, 36). Chandrachud, CJ. held that such remarks were obiter, and did not authoritatively pronounce on the issue of J&K’s “internal sovereignty”, which was, instead, “[in]distinguishable from that enjoyed by other States” (¶165). Kaul, J., on the other hand, held that Prem Nath Kaul did recognize J&K’s “internal sovereignty”, but Article 370 was nonetheless designed in a manner such that it envisioned such sovereignty to, one day, cease existing:

68. Once these aspects are read with Article 370(3), the corollary is that there was a mechanism to bring the whole arrangement to an end. The effect of the power under Article 370(3), once exercised, would be that the Article ‘shall cease to be operative’. In other words, the mechanism was meant to de-recognize the State’s internal sovereignty.

Despite the theoretical disagreement on whether “internal sovereignty” was retained by J&K after Article 370, both judges concur on the Article’s ultimate purpose being J&K’s complete constitutional integration with the Union. While I do not propose this view to be necessarily incorrect, it was, undoubtedly, the product of a conscious choice: various other perspectives to Article 370, including those identifying as its primary purpose the enhancement of its autonomy, or the creation of avenues of participation concerning decisions affecting the state, have been offered. The Court chose to accord priority only to one objective, which assisted its interpretation of Article 370(3) conferring unilateral authority of abrogation to the President after the Constituent Assembly’s dissolution.

Based on the priority accorded to the integrationist logic deemed to underpin Article 370, the Court held that if the Constituent Assembly’s dissolution became the basis of the Article’s permanence, it would constitute a “freezing of the integration” between J&K and the Union (¶346(e)). In order to prevent such stultification, it held that the Constituent Assembly’s dissolution had no impact on the President’s power to abrogate Article 370, which could now be done unilaterally (¶346(d)). In other words, the proviso to Article 370(3) – which required a prior recommendation of abrogation from the Constituent Assembly became otiose the moment the Assembly was dissolved. All that remained was Article 370(3)’s main text, which empowered the President to abrogate the Article unilaterally. In a similar vein, Kaul, J. held that Article 370’s purpose, which was to “bring Jammu and Kashmir on par with other States”, could not be fulfilled within the J&K Constituent Assembly’s lifetime, and was an “ongoing exercise” (¶70). In order to prevent obstacles to this ongoing exercise, the President would, after the Constituent Assembly’s dissolution, obtain the power to abrogate Article 370 unilaterally. In order to remedy the procedural impossibility of obtaining the defunct Constituent Assembly’s recommendation to abrogate, the Court chose to de-operationalize the proviso requiring this recommendation, justifying it primarily in reference with to integrationist aims of Article 370 that survived beyond the J&K Constituent Assembly’s lifetime.

On the Insignificance of “Recommendations”, “Consultations” and “Concurrence” – Circumventing Article 370(3); Twisting Article 370(1)(d)

Having vested the unilateral power to abrogate Article 370(3) with the President after the Constituent Assembly’s dissolution, the Court added to its justifications – it held that even if such a recommendation was issued, it carried no binding value, and was, therefore, dispensable. Chandrachud, CJ. held that the requirement of a recommendation originating in the Constituent Assembly was akin to a ceremonial ratification process of little legal value, and its non-binding character from the very inception must be a factor in appreciating the validity of its removal (¶346(a)). This approach has been critiqued in an essay by Ashwini Singh.

Kaul, J., on the other hand, offered another reason why the J&K Constituent Assembly’s recommendation – even if issued – would have been non-binding: he states that the word “recommendation” envisions negligible agreement between the entity sending and receiving the recommendation (¶77). He juxtaposed the term “recommendation” with the terms “consultation” and “concurrence”, which are conditions stipulated under Article 370(1)(d) for Parliament’s lawmaking power over J&K, holding that unlike these two requirements positing high thresholds of agreement, “recommendation” does not mean much. The problem, however, lied in the different purposes these terms served under Articles 370(1)(d) and 370(3) – while “consultation” and “concurrence” qualified Parliament’s lawmaking power over the erstwhile State, a prior recommendation from the Constituent Assembly was a procedural condition for the Article’s abrogation, making the comparative weighing of their threshold agreements a likely irrelevant enquiry.

Kaul, J., therefore, held that the President – that is, the Central Government – should be given free rein under Article 370(3), for the value of a recommendation – as opposed to a “consultation” or “concurrence” – was minimal. On the other hand, when it came to the appreciation of these exact standards in C.O. 273’s extension of all constitutional provisions to the state without “concurrence” (or even “consultation”), the Court held that because all of the Constitution was applied to the erstwhile State (as opposed to some specific segments), no concurrence or consultation was necessary. Chandrachud, CJ. and Kaul, J. held that the consultative underpinnings of Article 370(1)(d) – which require the participation of the J&K Government – were relevant only when some constitutional provisions were being applied to the State (¶427(d); 94). On the other hand, when the entire Constitution was being extended, such consultation was unnecessary, for the extension was conceptually akin to the removal of Article 370 through Article 370(3). To summarize, the value of a “recommendation” is minimal, and that of a “concurrence” higher; but when all of the Constitution is applied to the State, both the “recommendation” and the “concurrence” are rendered equally irrelevant!

Conclusion

On this basis, I submit that the logic of integration lies at the judgment’s core – the Court invokes it as the primary justification for conferring unilateral abrogating authority on the President, which, in turn, enables the attribution of immense insignificance to the J&K Constituent Assembly’s “recommendation” concerning abrogation. The pursuit of constitutional integration trumped, in a way, the Constitution itself – instead of compelling the Union to follow either, if not both Article 370(3) and Article 370(1)(d) in the process of abrogation, the Court chose to de-operationalize Article 370(3) to justify the Union’s acts of abrogation, and justified non-compliance with Article 370(1)(d) based on the practical similarity between an order under Article 370(3) and one under Article 370(1)(d).

Guest Post: The Supreme Court’s Article 370 Judgment- VII: Explaining Incoherence

[This is a guest post by Ashwani Kumar Singh.]

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In an earlier post, I critiqued the Article 370 Judgment and argued that Article 370(3) recognised the constituent power of Jammu and Kashmir, which did not cease to exist on the dissolution of the Constituent Assembly of the State. In this post, I dissect the partial invalidation of Constitutional Order 272, and attempt to understand – but not defend – the approach adopted by the Court, as constitutionally incoherent as it may be.

Timing the Review

When a constitutional court is required to determine the validity of an executive or legislative action, an obvious concern is how the executive/legislature (political organs) would respond to the judicial decision. Courts thus have to assess the cost of non-compliance for the political actors. A higher cost of non-compliance would compel the political actors to adhere to the judicial rulings. However, the political actors would be willing to take that risk in high-stakes moments (see Sergio Verdugo’s piece ‘How Judges Can Challenge Dictators and Get Away with It’, especially the introductory section). One could say that the courts – consciously or unconsciously – assess the strength of the political actors and the political value of the concerned issue.

It is no secret that the abrogation of Article 370 had been a long-time agenda of the ruling party. A lack of strong and unanimous opposition from other political parties did not help either. Most of the opposition political actors and parties were concerned with the restoration of statehood and other related issues i.e., the exercise of power under Article 3 of the Constitution. They did not identify strongly with the procedure for abrogation of Article 370 laid down in clause (3) of the provision. This is not to say that the absence of political allies relieved the Supreme Court of its constitutional responsibilities, though one wonders if the delay in hearing of the matter affected or influenced the judicial decision/approach. Despite the inconsistent and incomprehensible observations (see my previous post), the court does manage to save something for ‘itself’.

Further Observations on Constituent Power

Though the partial invalidation of Constitutional Order 272 did not have any effect – as others and I have discussed in the previous posts – on the validity of the abrogation order (Constitutional Order 273), it did achieve two things. First, the court – adhering to and strengthening the settled jurisprudence of implicit limitation on legislative power – stated that ‘Legislative Assembly cannot be equated to the Constituent Assembly’ (see Para 384 of the majority judgment). Second, the Court held that the Constitution can be amended only through the prescribed constitutional procedures, and such procedures cannot be bypassed. The Court noted, in para 390, ‘the consequence of permitting amendments through the circuitous manner would be disastrous’.

These are obvious and expected observations but nonetheless important, given the recent attacks on the basic structure doctrine. The Court elaborated on the functions of constituent assemblies and legislative assemblies. It further noted that a constituent assembly ‘has a free rein to frame a Constitution’ (see page 266 of the majority judgment). For the Supreme Court, a constituent assembly is an extra-constitutional institution. It is not constrained by the Constitution.

Thus, on one side, the Court held CO 272 as partially unconstitutional, because it modified ‘the essential character of the proviso (to Article 370(3)) by substituting a particular type or kind of body (the Constituent Assembly) with another type or kind entirely (the Legislative Assembly) (see page 266 of the majority judgment). But even as it did so, on the other, the Court identified ‘constitutional’ limitations on the Constituent Assembly of Jammu and Kashmir. For instance, the Court noted that the Constituent Assembly could ‘fill in the details and provide a pattern of governance’ consistent with the constitutional prescription but could not declare Jammu and Kashmir as an ‘independent sovereign country’. These two conclusions – modification of essential character of the proviso to Article 370(3) and limitations on the State Constituent Assembly – are conflicting. I am not arguing the State Constituent Assembly had unlimited constituent power. As also submitted by the petitioners, the Assembly had to exercise its constituent power in compliance with Article 1 of the Constitution. I am disputing the degree and kind of limitations that the Court has envisaged. It appears (to me) that if we were to accept such limitations, the State Constituent Assembly would have more in common with a legislative assembly and hardly anything in common with an institution exercising constituent power.

Concluding Remarks: Saving the Constitution but not Kashmir

The Court has ‘attempted’ to ensure that nothing from the judgment could affect the future review of constitutional amendments. It expressly identified the presence of asymmetric federalism. As Gautam has shown in a previous post, the Court arguably did not ‘grant the union carte blanche under Article 356’. The Union, he argues, cannot make ‘irreversible changes to the constitutional structure vis-a-vis the state’ under Article 356. Though the Court did leave the question relating to Article 3 open to the future, it did not abdicate its power to sit in review of such decisions. I emphasize these points not to praise the court, but to say that the primary issue was the non-compliance of the abrogation procedure laid down in Article 370(3), and the Court has let us down.

Guest Post: The Supreme Court’s Article 370 Judgment – VI: On Representative Democracy

[This is a guest post by Krishnesh Bapat.]

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The critical question in In re: Article 370 of the Constitution was whether the President (acting on advice of the Government of India) could terminate Article 370, without involving the representatives of the people of Jammu & Kashmir (‘J&K’). This obligation to involve the representatives of the people of J&K arose because of the proviso to Article 370(3). According to the proviso, a recommendation from Constituent Assembly of J&K was a pre-condition before the President issued a notification to terminate operation of Article 370.

Conceptually, a similar question arose in the United Kingdom (‘UK’) in 2017 in R v. Secretary of State for Existing European Union (‘Miller 1’). Article 50 of the Treaty on the European Union (‘EU’) provided that a member state could withdraw from the EU after complying with its own constitutional requirements. The question in Miller 1 was whether the Government of UK could unilaterally withdraw from EU in exercise of its prerogative powers or whether it had to obtain the approval of the representatives of the people of UK in the Parliament.

Thus, fundamentally, the question in both In re: Article 370 and Miller 1 was whether the executive was legislatively constrained from exercising power. In this post, I compare these two judgments. As we shall see, the judgments reveal the constitutional values the courts embrace. While the Supreme Court of India continued its practice of deferring to the executive at the cost of the legislature, the majority opinion of the Supreme Court of the UK restrained the executive from depriving people of domestic rights without parliamentary approval. The argument is not that the Supreme Court of India should have followed Miller 1 – it could not have, considering the difference in the constitutional schemes and the specific questions before them. Instead, it is to highlight which values each of the courts placed a premium upon.

Beyond this critical question, I also compare how the two courts responded to similar assurances by the executive that the legislature will enact legislation at a later date. While the Supreme Court of India readily accepted this submission and chose not to decide on the legality of converting the State of J&K into a Union Territory, the Supreme Court of United Kingdom, outrightly rejected it.  

On the critical question

The question before the Court in In re: Article 370 was whether Constitutional Orders (‘CO’) 273 complied with the procedure provided in the Constitution. Kieran Correia, in a previous post has explained the import of the CO. For our purposes it is enough to say that CO 273 notified that Article 370 shall cease to exist. It was issued under Article 370(3), the proviso to which, required a recommendation from the Constituent Assembly of the State. The purpose of the proviso was to uphold the fundamental character of representative democracy (See Mohd. Maqbool Damnoo v. State of Jammu & Kashmir). The President could not alter Article 370 without involving the direct representatives of the people of Jammu & Kashmir.

The Supreme Court did not dispute this position of law (See Para 426). Yet it upheld CO 273, even though the representatives of the people of Jammu & Kashmir did not have any say in its notification. The justification offered by the Court was that since a) the Constituent Assembly had ceased to exist, the President could unilaterally notify that Article 370 shall cease to operate; and b) the recommendation was anyway not binding on the President (para 346). As Kieran has pointed out, the first justification ignores that the proviso to Article 370(3) indicates ‘more than the Constituent Assembly as an institution, it is the constituent power of the people of Jammu and Kashmir that was represented.’ The second justification sidesteps the text of the Constitution which made recommendation from the representatives of the people a pre-condition before the exercise of executive power. It does not matter that the recommendation was not binding: the fact of the recommendation was still necessary.

How does this compare with the majority opinion in Miller 1? As mentioned above, the question in Miller 1 was whether the Executive in the UK could unilaterally initiate the process of leaving EU without parliamentary approval. The Executive in the UK has a prerogative power to enter into and withdraw from treaties. Despite acknowledging the centrality of this prerogative power in the constitutional scheme of UK, the Court held that parliamentary approval was necessary. The majority observed that ‘far-reaching change to the UK constitutional arrangements’ cannot be brought by ministerial action alone. The change was far-reaching because withdrawal from the EU would abrogate the rights available to people in the UK from EU law (para 81). These rights were created by a series of statues which the Parliament had enacted after the UK joined the EU. Therefore, parliamentary sovereignty required that only the Parliament could take away those rights, and not the executive.

Thus, the decision in Miller 1 placed a premium on the legislature, as against the executive. This was consistent with the principle of representative democracy. In contrast, the plurality opinion in In re: Article 370, crowns the executive with a power greater than what the executive itself claimed. The executive believed that a recommendation from the Parliament (and not the Constituent Assembly) was necessary, but a deferential court held that the executive could unilaterally cease the operation of Article 370. This approach which side-lines the people of Jammu & Kashmir entirely despite the explicit stipulation in the Constitution, undermines representative democracy and federalism, both of which are essential to our constitutional scheme.

On assurance

Supreme Court of India’s deference to the executive did not stop here. Another issue before the Supreme Court of India was the validity of the Jammu and Kashmir Reorganisation Act, 2019. The Act reorganises the State of Jammu & Kashmir into two Union Territories. The Petitioners argument was that the Parliament cannot use Article 3 to extinguish the character of statehood by converting a State into a Union Territory. The plurality opinion waxed eloquent for 32 paragraphs (Para 471 to 502) on the constitutional history of States and Union Territories, the reason for existence of Article 3, federalism and representative democracy. However, in the 33rd paragraph, it refused to decide the legality of the reorganisation. It did so because the Solicitor General had submitted that statehood would be restored in Jammu and Kashmir (Para 503).

The Solicitor General (for the Union of India) submitted that statehood will be restored to Jammu and Kashmir and that its status as a Union territory is temporary. The Solicitor General submitted that the status of the Union Territory of Ladakh will not be affected by the restoration of statehood to Jammu and Kashmir. In view of the submission made by the Solicitor General that statehood would be restored of Jammu and Kashmir, we do not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3……

There are two concerns. First, what may or may not happen in the future does not change the question before the Court. The question before the Court was the legality of a reorganisation which has deprived a people of a democratically elected government for the past 4 years. If the reorganisation is illegal, the illegality should cease immediately and not at an undetermined time in the future. This is akin to detaining someone illegally and then a court ruling that it will not decide the legality of the detention as the detainee will be released sometime in future.

Second, restoring Jammu and Kashmir’s statehood would require legislation from the Parliament in terms of Article 3 of the Constitution. In law or in fact, a law officer simply cannot give any assurances regarding how the Members of Parliament would vote on a bill. The Members, including those from the treasury bench, are entitled to vote as they deem fit notwithstanding the 10th Schedule. Moreover by June next year the 18th Lok Sabha will get elected and it may not have the same composition as the 17th Lok Sabha. Here, as Apar Gupta pointed out, the decision in Shreya Singhal v. Union of India, is worth noting. In that case, the validity of Section 66A of the Information Technology Act, 2000 was under challenge. The law officer for the government assured the Supreme Court that the government would not use Section 66A to curb free speech. The Court rejected the submission and held that if Section 66A was otherwise invalid, it could not be saved by an assurance which does not even bind successor governments (Para 92).

While the Supreme Court of India readily accepted the assurance, the Supreme Court of the UK did not do so. In Miller 1, the Government of UK assured the Court that it would enact a legislation repealing EU law after initiating the process to leave the EU. The Court rejected this submission because the intentions of the government are not law, and that the ‘courts cannot proceed on an assumption that will necessarily become law’ (Para 35). Unfortunately, the Supreme Court of India has proceeded entirely on that assumption.

Concluding remarks

The majority verdict in Miller 1 is not a gold standard. The dissent in that case has been strongly defended on the ground that the majority has unnecessarily curtailed the prerogative powers of the Executive. Nonetheless, the majority opinion does further values of representative democracy, having found those values in an unwritten constitution. In contrast, the plurality in In Re: Article 370, conferred unilateral power upon the executive, even when a written Constitution required direct involvement of the representatives of the people of Jammu & Kashmir.

I would be remiss if I do not point the timeline within which both the courts adjudicated significant constitutional disputes. On June 23, 2016, the UK Government stated its intention to issue a notice to leave the EU. On January 24, 2017, the Supreme Court of UK pronounced its decision in Miller 1. The intervention in R v. Prime Minister (‘Miller 2’) was even more timely. In that case, the question was whether the advice given the Prime Minister to the Queen to prorogue the Parliament was lawful. The advice was given on August 28, 2019 and 11 judges of the UK Supreme Court unanimously ruled on September 24, 2019 that the advice was not lawful. In contrast, the COs in In re: Article 370, were notified in August, 2019 but a decision on their legality was only pronounced in December, 2023. Enough has already been said about the manner in which this case was kept pending. In any case, the Supreme Court seriously needs to introspect on how to avoid delays in cases where it is improbable if not impossible to set the clock back.

Guest Post: The Supreme Court’s Article 370 Judgment – V: On the Extinction of Statehood

[This is a guest post by Kieran Correia. Following previous posts on the President’s power to abrogate Article 370, and the scope of Article 356, this piece discusses the Court’s non-decision on the conversion of the state of Jammu and Kashmir into two union territories.]

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Article 370, to Sheikh Abdullah, was a repository of the particularity of Kashmiri autonomy, of ambitions to protect their distinct ethnolinguistic and religious identities and to embark on large-scale land reform. As he remarked in the Jammu and Kashmir Constituent Assembly, on 25 March 1952, there was no doubt that there was “no other State which enjoy[ed] similar constitutional status.” The premise of this, however, was full-fledged statehood – the promise that Jammu and Kashmir would be an equal part of the Union with a distinct status to respond to its demands.

The Union, after decades of chipping away at Jammu and Kashmir’s distinct status, eventually extended the entire Constitution to Jammu and Kashmir. The constitutional saga was not to end there, however. The Jammu and Kashmir Reorganisation Bill 2019 was introduced on the same day, carving out two Union Territories (UTs) – Jammu and Kashmir, and Ladakh – from the existing State. The idea of “no other State” was buried; now, it appears, Parliament wanted no state at all.

The Reorganisation Act, it bears no reminder, was unprecedented in Indian constitutional history. At no time, with any of the multiple Reorganisation Acts that have been passed in our history, has Parliament demoted a state – in its entirety – to a UT, or UTs in this case. In my third and final post on In Re: Article 370, I attempt to dissect the Court’s treatment of Parliament’s exercise of power under article 3.

Interpretive evasion and the Executive(’s) Court

Petitioners impugned the Reorganisation Act on the grounds that it was ultra vires the Constitution, as the power of degrading the status of a state to a union territory is not provided to Parliament or, at least, not provided to Parliament in article 3. Petitioners conceded that in the process of redrawing state lines, a state may be extinguished: take, for example, the State of Bombay being reorganized into the States of Maharashtra and Gujarat. However, what is distinct in the reorganization of the State of Jammu and Kashmir is that the status of the state as a whole was downgraded, and its statehood extinguished.

Chandrachud CJ agreed with the distinction between “extinguishing a State and extinguishing the character of a constituent unit as a State” (para 499) (emphasis in original). The latter is when a state is “converted into a Union territory in full, with no part of it retaining statehood,” a scenario clearly different from, for example, the reorganization of the State of Bombay.

However, in a bizarre move, the Court chose to abdicate its responsibility of pronouncing on the issue entirely, invoking a submission from the Solicitor General that “statehood will be restored to Jammu and Kashmir and that its status as a Union territory is temporary” (para 503). This is – with due respect – absurd for a constitutional court. The judicial function, in its most conservative sense, is to frame issues, hear both sides, and subsequently pronounce on those issues, with adequate reasons. Relying on assurances from one side – assurances made in the air, with no fixed timeline or enforcing mechanism – is out of the ordinary.

Of course, this is far from new for the Court. This judgement is of a piece with a subtle, but noticeable, shift in the Court, as it resembles, more and more, an “Executive(’s) Court.” Sealed cover jurisprudence (fortunately no longer in vogue), judicial evasion, judicial vagueness, and so on marked the culmination of a scepticism towards procedure and a fascination with rhetoric. The manner in which the Court deals with the issue of the extinction of statehood here is best described as interpretive evasion – a practice of avoiding deciding on an issue or supplying any reasoning, preferring, instead, an ad-hoc style of adjudication characteristic of informal adjudication.

The Court thus kicks the can down the road, leaving the question of whether the “character of statehood” can be extinguished for another Court to rule on – despite its centrality to the present case. The underlying basis of the Reorganisation Act, as one set of Petitioners submitted, is one that “place[s] the very concept of statehood at the mercy of the Union Parliament” (Mr CU Singh’s Written Submissions, para 73) (emphasis in original) – a constitutional question which goes unaddressed in the judgement. The assurances of the Solicitor General, unfortunately, cannot resolve constitutional issues.

Dispensing with procedure as constitutional practice

The other question before the Court was whether Parliament could have substituted its views for those of the state legislature under the first proviso to article 3, which allows for the alteration of areas and boundaries of existing states. The Court, however, could only have proceeded to this question if it found that article 3 confers the power of extinction of statehood in the first place. If this power did not exist – or, at least, article 3 did not grant such power – the question of requiring the views of the state becomes moot.

Because the Court elected to cop out, its discussion of the first proviso to article 3 has no actual bearing on the case. Nonetheless, the Court’s analysis of the interface between article 356 and article 3 is important to understand – if only as a portent of things to come.

While the first proviso to article 3 requires only the views, and not concurrence, of the state legislature – as confirmed by Babulal Parate – the Court held even this requirement to be dispensable. Parliament could thus substitute its own views for those of the state legislature. However, the Court failed to consider the dialogic value of the state legislature submitting its views: that of creating the conditions for a more considered decision, informed by the views of a body bent slightly closer to the ground, by the President when she recommends a reorganization bill to Parliament for its consideration (or, as it works out in practice, allowing for a more considered decision by Parliament).

Parliament supplying its own views in place of the legislature’s defeats this purpose. While the power of the veto was – with good reason – withheld from the states at the time, lest dominant groups sabotage minorities within a state, the requirement of eliciting the views of the state legislature cannot be held to be meaningless. Indeed, if the Court’s reasoning is applied in practice, the Union can simply impose President’s Rule on a state and consult with itself before reorganizing a state; much like self-concurrence, self-consultation is a contradiction in terms. The Court thus greenlit a clear-cut case of abusive constitutionalism.

Before I conclude, the Court also briefly discussed the second proviso to article 3, added by Constitution Order 48 in 1952. The proviso stated: “Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State” (emphasis added).

The second proviso was suspended with the Presidential Proclamation that imposed President’s Rule in Jammu and Kashmir. However, temporally, CO 272, which extended the entire Constitution to Jammu and Kashmir and did away with any exceptions and modifications to the provisions of the Constitution, preceded the Reorganisation Act. Since the Court held that aspect of CO 272 to be valid, the second proviso ceased to exist. Therefore, ruling on the validity of the suspension of the second proviso to article 3 would be redundant and the Court does not address this issue substantively.

Tying the threads

In my first post, I had cautioned against seeing In Re: Article 370 as an aberration, a manifestly unconstitutional judgement that flies in the face of decades of settled constitutional jurisprudence. The Constitution, despite its pretensions to federalism, has placed the Union in a position of structural dominance over states – a position the Court has, as a rule, chosen to take interpretive inspiration from rather than mitigate in some way.

As we acknowledge its continuity with a longer strand of jurisprudence, however, the specificity of this verdict should not be lost on us. The Court here engages in what I call interpretive evasion with a perfection that only comes with practice. It makes a mess of interpreting the Constitution, emphasizing the text where convenient – even to the exclusion of other factors – and ignoring it where not. A pro-Union and pro-Executive bias congeals into a judgement that engages in an interpretation of the Constitution that sanctions blatantly abusive constitutionalism. Considering the entire abrogation exercise and the subsequent reorganization collapsed pivotal contradictions that are central to federal jurisprudence in India, the immediate task must be to limit the verdict to its facts.

There is no doubt that In Re: Article 370 represents a crisis in Indian constitutional law. As Gautam notes at this juncture, “[T]ext, structure, precedent, and the canons of constitutional interpretation have become negotiable materials in constitutional adjudication, especially when the constitutionality of acts of State is under challenge.” This, however, is no reason to be despondent. As a famous thinker once quipped: “Everything under heaven is in utter chaos; the situation is excellent.”

Guest Post: The Supreme Court’s Article 370 Judgment – IV: Emergency, President’s Rule, and Constitutional Change

[This is a guest post by Kieran Correia. As part of the ongoing blog series examining the Supreme Court’s Article 370 judgment, this post shifts tack from unilateral Presidential action (examined in the previous three posts), to issues around Article 356 of the Constitution.]

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[Editorial Note: As a matter of constitutional doctrine, it is important to preface this post with the observation – flagged briefly in the post – that once the Supreme Court held that the President was empowered to unilaterally abrogate Article 370 through the route of Article 370(3), the issue of whether or not this was done during the pendency of an Article 356 Emergency proclamation in the State became irrelevant to deciding the issue. Consequently, as a matter of constitutional doctrine, the majority judgment’s observations on Article 356 – discussed below – are obiter dicta, and do not form binding constitutional law. However, this must be accompanied by the caveat that the distinction between ratio and obiter – to say nothing of constitutional doctrine itself – has more or less been effaced in Indian constitutional jurisprudence.]

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In an earlier post, I had discussed the Court’s holding on the abrogation of article 370. Here, I will take up two of the limits on the President’s powers under article 356 proposed by Petitioners and how the Court responded to these claims. The first is the nature of the legislature’s powers that can be assumed by Parliament after a Proclamation of Emergency, and the second is the nature of the power that can be concretely exercised.

Before I begin, it must be noted that the key issue was whether the President and Parliament could, after a 356 Proclamation, stand in for the state government and legislature in their respective rôles under articles 370(1)(d) and 370(3). The Court made quick work of the petitioners’ written submission, holding: first, that the President can unilaterally abrogate article 370, doing away with the recommendation of the Constituent Assembly as a precondition; and secondly, that since the extension of the entire Constitution to Jammu and Kashmir under article 370(1)(d) has the same effect as abrogation under article 370(3), it does not matter if the President is – in effect – seeking his own concurrence or that of the state government.

In other words, the abrogation of article 370 did not, as a matter of law, require the Promulgation of Emergency; remove the Emergency from the equation and the Court’s holding on articles 370(1)(d) and 370(3) remains the same (see Editorial Note above). While this may seem like an obvious observation, it is important to make it for the sole reason that the Court’s obiter does not become part of, as Gautam calls it, “a kind of constitutional ‘common sense’” – and, worse, a future verdict. Nonetheless, in the spirit of academic critique, I will discuss the reasoning the Court provided while examining the Emergency issues it framed for itself.

Article 356(1) and the Effacement of Federalism

Let us begin with the text of article 356. Entitled “Provisions in case of failure of constitutional machinery in State,” article 356 states, in relevant part, that if “a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution,” the President – upon being so satisfied – may, by Proclamation, inter alia “declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.”

The text provides us some clues about the reason for its provision and the manner in which it ought to be implemented. For one, there must be a failure of constitutional machinery in a state. For another, to avoid the gap in daily governance created by suspending the state legislature, its powers can be entrusted to the President and Parliament. This temporary takeover should be read in light of the object of an Emergency Proclamation.

The Petitioners thus offered an interpretation of the state legislature’s powers – given the impugned CO 272’s replacement of the Constituent Assembly with the legislature in article 370(3) – in this context. Petitioners distinguished between the constituent and legislative powers of the legislature, with former including the power to give its concurrence under article 370(1)(d). Chandrachud CJ prefers the broader labels of “law making” [sic] and “non-law making” [sic] powers, noting, “in addition to the legislative powers granted to the States under List II of the Seventh Schedule, the States have also been granted various non-law making [sic] powers to ensure the voice of their electorates are [sic] well represented at the constitutional plane” (para 220). These powers – which include the election of the President, the ratification of certain amendments, and, in this case, the giving of concurrence – are intrinsically incapable of being exercised by the temporary Union administration. As the judgement also goes on to recognize, these non-law-making powers “ensure[] that the constitutional governance of the State cannot be overridden by national considerations” (para 220).

Chandrachud CJ nonetheless goes on to reject this argument, observing that article 356(1) admits of no distinction. If one is to contend that even the thin layer of federal protection that exists in the Constitution can be exercised by Parliament at the time of an Emergency, the Court is essentially greenlighting, in theory, the Union unilaterally altering the fundamental workings of a State or making decisions intimately bound up with its federal identity.

Constitutional breakdowns and irrevocable changes

The second submission Petitioners made that I will analyse was that “fundamental, permanent and irrevocable” changes were not permissible in exercise of article 356 powers (Mr Gopal Subramanium’s Written Submissions, para 107). Since “emergencies” are necessarily not in the normal course of events, and Emergency powers are temporary provisions allowing for the Union to restore normalcy in the affected areas, article 356 did not give the President carte blanche. These powers are hemmed in by the fact that they are temporary. Moreover, Emergency powers are restorative and conservative (I use the term not in the partisan sense) and not generative or destructive.

The Court however rejects these arguments. Gautam, in his earlier post, advanced an alternate interpretation to the current reading that is circulating. The judgement contains two holdings: first, actions undertaken post the promulgation of Emergency must have a reasonable nexus with its object and purpose. And secondly, irreversible changes to the constitutional structure could not – logically – be the object and purpose of a declaration of Emergency, as it is intended to be restorative. Therefore, the only reading possible would be that the judgement did not have constitutional changes in mind in permitting permanent changes.

Chandrachud CJ, however, is quite clear in treating the power under article 356(1) as unlimited. In his view, articles 356 and 357(2) are watertight compartments; the power vested in state governments to repeal legislative action taken does not introduce a limitation on the President’s power under article 356. However, as Petitioners had submitted, when two constitutional principles collide, one cannot be permitted to efface the other (WS, para 118). And yet, the Court’s reading of Part XVIII of the Constitution, informed by the authoritarian logic of the Forty-second Amendment, resolves this antinomy by allowing article 356 to swallow the safeguard baked into article 357(2) – all in the guise of preventing article 357(2) from limiting the article 356 power!

Moreover, Chandrachud CJ conducts a close reading of the text of article 357(2) to find that it only covers “laws” and not “executive actions” (para 212. b.) (emphasis in original). However, he goes on to acknowledge that:

212. … c. Article 357(2) encapsulates the working of the Indian federal model by providing that though the division of powers between the Union and the State legislatures which is a core component of the federal structure is capable of being altered during the subsistence of the proclamation under Article 356, the federating units would have the power to reverse or modify the changes which were brought by the Union during the subsistence of the Proclamation. In that sense, Article 357(2) enables the restoration of federal principles.

The majority opinion, then, is in irreconcilable conflict with itself. On the one hand, Chandrachud CJ excludes any limitation on 356 powers and, further, “executive actions” from the purview of article 357(2) and, therefore, any test limiting the President’s power. On the other hand, he admits to the purpose underpinning article 357(2) – allowing the restoration of federal relations to the status quo ante – and maintains the necessity of an object and purpose test. The upshot of all this is, unfortunately, a Janus-faced reading of Emergency powers that does not do us any favours.

Conclusion

The Proclamation of Emergency – and the subsequent abrogation of article 370 under its cover – was a hot button issue but, somewhat paradoxically, rendered meaningless by the Court’s eventual ruling. Nonetheless, the judgement contained several observations that, should they be incorporated in a future holding, would hollow out an already emaciated federal scheme in India, leaving it a shell of its former self. Whether In Re: Article 370 marks a turning point in that regard rests on how we all respond to the Court.

Guest Post: The Supreme Court’s Article 370 Judgment – III: On the (Ab)Uses of History

[This is a guest post by Arvind Abraham. It follows the previous posts in the series, which examine the majority opinion’s holding that the President had the power to unilaterally abrogate Article 370. Previous posts in the series are available here and here.]

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The Supreme Court of India delivered its verdict on the constitutional validity of the abrogation of Jammu and Kashmir’s special status under Article 370, along expected lines. While there is much to unpack about the landmark decision, especially with respect to Parliament’s coup de main against the statehood of Jammu and Kashmir, my comments are restricted to Chief Justice Chandrachud’s plurality opinion on the constitutional history of Article 370, which led him to conclude that the provision is temporary, and that the procedure under Article 370 (3) to make the provision inoperative can be unilaterally exercised by the President of India, following the dissolution of the Constituent Assembly of Jammu and Kashmir (for previous analyses of this issue on this blog, see here and here). I will avoid discussing the background to  the accession of Jammu and Kashmir to the Union of India; however, interested readers can refer to my earlier article on the subject.

Periodization is an important element of historiography, as one needs to acknowledge that with the change in time and circumstances, views and interpretations also vary. Therefore, to understand the meaning and purpose of Article 370 at the time it was drafted, it is important to restrict oneself to the period from 1947 till 1953. From 1953 there was a distinct turn as Prime Minister Jawaharlal Nehru and Sheikh Abdullah had a fall out, leading to Abdullah’s dismissal and imprisonment, and the Union Government embarked on a mission to erode the power of Article 370, all of which are part of the pathologies of the centralized post-colonial state. In 1963, Nehru himself conceded that Article 370 had been eroded. At the risk of being reductionist, I shall briefly sketch the history of the origins of Article 370.

During the process of the integration of states, several princely states (grouped as “Indian States”) formed Unions of States such as Travancore-Cochin, Vindhya Pradesh among others, with covenants sanctioning the creation of state constituent assemblies to frame their own constitutions, separate from the federal constitution. On 4^th November, 1948, Dr. B.R Ambedkar introduced the Draft Constitution of India in the Constituent Assembly, and said that the Indian States had the freedom to draft their own state constitutions. Constituent Assemblies were convened in Travancore-Cochin, Mysore, Saurashtra, but not in other Unions. Initially the Ministry of States proposed drafting a model state constitution for the constituent assemblies of the Indian States to adopt. However, recognizing that the formation of individual state constitutions may further delay the integration of the republic, in May, 1949, a conference of the various rulers of states decided to do away with the option of framing separate state constitutions. Instead, the Constituent Assembly was tasked with framing constitutional provisions relating to states, within the Constitution of India. Consequently, instead of having a separate ratifying process of the Constitution of India by representative bodies of the states, like in the U.S Constitution, ratification by the rulers of the states was held to be sufficient. In states where state constituent assemblies had been formed, they were permitted to suggest non-binding recommendations to the Constituent Assembly.

Keeping this context in mind, Clause 3 of Article 370 allows the President of India to declare that the Article shall cease to operate or be modified in its application, after a recommendation by the Constituent Assembly of Jammu and Kashmir. The Supreme Court held that Clause 3 was merely codifying the practice as it existed among the state constituent assemblies of the Indian States, which were allowed to submit non-binding recommendations. Regrettably, however, this interpretation fails to take into account the unique history of Article 370.

Even though the Union Government had decided to give up the design for state constitutions in May of 1949, in the same month, Jawaharlal Nehru wrote to Sheikh Abdullah saying that it was the settled policy of the Government, as accepted by Sardar Patel and himself, that the Constituent Assembly of Jammu and Kashmir had the right to determine its own constitution, owing to the unique circumstances under which the state had acceded to India. For the next five months, Sheikh Abdullah, Patel, Nehru and N. Gopalaswami Ayyangar engaged in negotiations to frame the text of a special provision relating to Jammu and Kashmir in the Constitution of India. It was recognized that a temporary arrangement clarifying the relationship between the Constitution of India and the state was required, as it was not known when the State Constituent Assembly could convene, owing to the challenges faced by the state following the first Indo-Pak War.

It is important to note that the Draft Article 370 (then Article 306A) as proposed by the Government of Jammu and Kashmir, and the amendments suggested by the Ministry of States, did not contain any procedure to cease the special status of the state. Following discussions with Sheikh Abdullah, Ayyangar forwarded a revised draft of Article 306A to Patel on 15th October, 1949, which for the first time included the procedure to cease the special status of the state. Ayyangar in his speech to the Constituent Assembly on 17^th October, 1949 explained that the recommendation from the Constituent Assembly of Jammu and Kashmir is “a condition precedent” for the President to invoke his powers under Clause 3 to abrogate Article 370. This procedure is clearly not analogous to the procedure which was available to the state constituent assemblies of the other states while making recommendations. Article 370 was clearly a sui generis provision.

The Court is accurate is noting that the marginal note describes Article 370 as a temporary provision. However, it was temporary so as to give the Constituent Assembly of Jammu and Kashmir the time to finally decide the state’s relationship with the Constitution of India. Sheikh Abdullah’s letter to Ayyangar on 16^th January, 1951 states that one of the issues the Constituent Assembly of Jammu and Kashmir would determine is the Union’s powers in relation to the state, and that the decision of the Assembly would be binding. In the following month, Nehru wrote to Abdullah recognizing that the people of the state would “decide ultimately every question affecting the state.”

Yuvraj Karan Singh issued the proclamation convening the Jammu and Kashmir Constituent Assembly on 1^st May, 1951, and during the proceedings of the Assembly, Abdullah made it clear why Article 370 had been inserted in the Constitution of India, as a temporary provision. He said

… the temporary nature of this Article arises merely from the fact that the power to finalise the constitutional relationship between the State and the Union of India has been specifically vested in the Jammu and Kashmir Constituent Assembly…

Abdullah therefore concluded that Article 370 could not be unilaterally abrogated. This is also reflected in President Rajendra Prasad’s note to Nehru on 6^th September, 1952, where he says that Clause 3 of Article 370 was not to be used “without any limit as to time.” Prasad reasoned that while the President is not bound by the recommendation of the State Constituent Assembly, the latter is still a condition precedent for the President to exercise his power under Clause 3. The logical conclusion one can draw from this history is that Article 370 was to remain temporary until the State Constituent Assembly took a decision on the matter. The State Constituent Assembly inserted Article 147 (c) in the State Constitution, to state that no legislative action could be taken to tamper with the federal constitutional provisions as applicable to the state, which for all purposes includes Article 370. Furthermore, by not recommending the abrogation of Article 370 before its dissolution in 1956, the State Constituent Assembly rendered the constitutional arrangement under Article 370 permanent, despite its initial position as a temporary provision. It would not make any logical sense as to why the framers would allow a condition precedent for the abrogation of Article 370 from 1951 to 1956, and then allow its unilateral abrogation after 1956.

The Supreme Court revealed its policy preference underlying its historical-doctrinal argument by saying that treating Article 370 as a permanent provision, would lead to the “freezing of integration.” However, this smuggles the conclusion into the premise: the question of “freezing” depends on whether there is a one-size-fits-all approach towards integration. Asymmetrical federalism i.e an arrangement that accommodates unique conditions of different states, especially in a country as large and diverse as India, can also be a method of integration. Such approaches are fairly common in constitutional law across the world and are clearly not avant-garde. It is not the Court’s place to decide whether the permanency of Article 370 is a constitutional skein or an apposite approach. In fact, Nehru in a personal note on 3^rd July, 1952, contemplated as to whether all constituent units of the Indian Republic should have exactly the same footing. He concluded by noting down that it is “not a practical proposition and, even from the larger point of view, it is desirable to have a certain flexibility in our Constitution. Therefore, we must proceed on the basis of some special treatment of J&K State in this connection.” Unfortunately, through an arguable misreading of the constitutional history of Article 370, the Supreme Court has sanctified the clogging of an important constitutional accommodation.

Guest Post: The Supreme Court’s Article 370 Judgment – II: On the Constituent Power of Jammu and Kashmir

[This is a guest post by Ashwani Singh.]

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On 11 Dec (2023), the Supreme Court ruled on multiple issues relating to Article 370 and the relationship between the Union and the State of Jammu and Kashmir. The Court unanimously upheld the validity of Constitutional Order 273 (the ‘abrogation order’) issued by the President to abrogate Article 370. The Court found Constitutional Order 272 – to the extent that it amended Article 370(3) – ultra vires the procedure laid down in Article 370(3). However, this finding did not have any effect on the validity of the abrogation order because the President, the court held, could unilaterally modify or abrogate Article 370. In essence, the Union Govt need not even have made the effort of adhering to the formal principle of “double consent” under Article 370, as the role of the state of Jammu and Kashmir in abrogating Article 370 could be simply dispsned with.

While the judgment also dealt with other issues relating to statehood and emergency, in this post, I respond to the arguments and observations made on the nature of Article 370 and the procedure for its modification/abrogation. I argue that though it was a temporary provision which might or might not have become permanent upon the dissolution of the State Constituent Assembly, its abrogation was contingent on the recommendation of a body exercising constituent power of Jammu and Kashmir (which may or may not be a “Constituent Assembly”). What Article 370(3) did was recognise the constituent power of Jammu and Kashmir. The constituent power could not possibly have ceased to exist on the dissolution of the State Constituent Assembly.

Article 370: Permanent or Temporary? Does it matter?

A unilateral wish of the Constituent Assembly of India to bring the State of Jammu and Kashmir on an equivalent level to that of other states did not entitle the Union to define, at its discretion, its relationship with the State. Did the constitutional framers hope that Article 370 at some point in the future would be abrogated? Yes, they did: that is not disputed. However, the realisation of that hope or wish or intention, whatever we may call it, was contingent on the recommendation of the Constituent Assembly of the State, as set out under Article 370(3). The mere categorisation of Article 370 as a temporary provision did not mean that the Union had an obligation and power to abrogate it by any means necessary. It arguably imposed a duty on the Union to work towards constitutional integration, but the imposition of such a duty did not entitle the Union to override the constitutional procedures laid in Article 370. One such procedure was for the modification or abrogation of Article 370 itself, which could not have been achieved without the recommendation of the Constituent Assembly of the State.

The Supreme Court completely ignored these aspects of Article 370. The Court relied primarily on the marginal note to establish the temporary nature of Article 370. The majority judgment explained how the provisions of Part XXI are/were temporary and transitional provisions, either based on a time limit or the occurrence of an event. It appears that the Court, somehow, believed a finding of the non-temporary nature of Article 370 was equivalent to saying ‘the integration of Jammu and Kashmir with India was temporary’ or incomplete (see paras 321-322 of the majority judgment). This is bizarre, given that the Court recognised asymmetric federalism under the Constitution, citing examples of special arrangements in Article 371A-371J. Consequently, there is nothing untoward about the conclusion that the temporary provision (Article 370) turned into a “special provision” upon the non-occurrence of the event that – if occurred – would have possibly brought an end to Article 370 (that is, the recommendation of the Constituent Assembly of J&K). It should also be noted that though the members of the Constituent Assembly hoped for the abrogation of the provision, it is equally likely that they foresaw other possibilities. This may be inferred from the fact that clause (3) not only prescribed (a possibility) for the abrogation of Article 370 but also its continuation with such modifications and exceptions as recommended.

The Constituent Assembly of the State, and the Impact of its Dissolution on Article 370

To recall, unlike clause 1 of Article 370, clause 3 of the provision did not just require ‘concurrence’ or ‘consultation, it required a ‘recommendation.’ The majority judgment also noted the use of these different terms and their meanings (see para 317(d)). Further, Article 370(3) required that such a recommendation must come from the Constituent Assembly – and not the legislative assembly, or the Government of the State. The higher authority of the State Constituent Assembly could be further inferred from clause 2 of the provision, which stated:

“If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.”

N G Ayyangar also stated in the constituent assembly debates – which the majority judgment cited in para 267 – that ‘this clause [clause 2 of Article 370] provides that that concurrence should be placed before the Constituent Assembly when it meets and the Constituent Assembly may take whatever decisions it likes on those matters’. It is then incomprehensible how the Court concluded that the requirement of obtaining the consent of the State Constituent Assembly was ‘only’ a message of goodwill that the members of the Constituent Assembly (of India) wanted to convey (see para 277 of the majority judgment). The Court also noted that the purpose of Article 370(2) was ‘to subject the exercise of power by the emergency administration to the democratic will of the people exercised through the members of the Constituent Assembly’. How could this just be a message of goodwill?

In para 346, the court noted that the recommendations of the State Constituent Assembly were not binding, and the Union had to only ‘earnestly consider’ such recommendations. The court reached this conclusion by drawing a comparison between the procedure laid down in Article 370(3) and the procedure for the ratification of the Constitution (of India) by the Indian states. This is not an ideal comparison. Article 370 was not a tool for the ratification of the Constitution. The ratification had already been completed with the proclamation made by Yuvraj Karan Singh on 25 Nov 1949. Article 370 was the bedrock for establishing a constitutional relationship between the Union and the State of Jammu and Kashmir. The State Constituent Assembly did not have the power to nullify the accession of the State. But it did have the power to influence and define the relationship between the Union and the State. If the members of the Constituent Assembly indeed wanted to give such symbolic effect to the recommendations of the State Constituent Assembly, they would have likely used ‘consultation’ or ‘concurrence’ as they did for clause (1).

Finally, the dissolution of the State Constituent Assembly did not cause the destruction of the constituent power of Jammu and Kashmir. The dissolution meant that the provision was no longer temporary in nature. To be clear, I am not arguing that Article 370 became unamendable. The President could still issue a notification to abrogate or modify Article 370 provided an institution exercising constituent power of Jammu and Kashmir made a recommendation to that effect. The Supreme Court did not consider this possibility; probably because it has never faced the issue of emergence of constituent power before; perhaps it believed that that would have opened a pandora’s box. But in that event, the Court could have still found CO 273 ultra vires the procedure laid down in clause (3), while keeping the issue of emergence of constituent power open for the future.

Concluding Remarks

All said and done, the Court could not have (or so I submit) adopted a worse approach to determine the constitutionality of the abrogation order. The judicial validation of the abrogation order should be seen as the Court crowning the executive with a power far greater than what the executive itself could have imagined, given that it did not even claim such a power for itself, when it went about abrogating Article 370. One would hardly be surprised if Lord Atkin rose from his grave to recite his famous words – ‘more executive-minded than the executive’ – albeit this time for the House of Indian Lords.

Guest Post: The Supreme Court’s Article 370 Judgment – Unilateral Declarations and Self-concurrence as Constitutional Practice

[This is a guest post by Kieran Correia.]

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On 11 December, a five-judge bench of the Supreme Court handed down a unanimous judgement on the abrogation of article 370 and the subsequent demotion of Jammu and Kashmir’s statehood. Finding for the Union in all issues but one, the Court’s verdict – three judicial opinions, with Chandrachud CJ’s opinion being in the majority (joined by Kant and Gavai JJ) and Kaul and Khanna JJ authoring separate concurring opinions – is significant, with its repercussions likely to shape Indian federalism in the years to come.

We might be tempted to forget that In Re: Article 370 is part of a larger story – of power increasingly centralized and concentrated in a Constitution already notoriously centralized and concentrated. While we must analyse the specificity of the Court’s opinion, a long line of jurisprudence has created the conditions of possibility for our present moment. It is important that we bear this in mind even as we read the Constitution against the grain and attempt to recuperate more democratic political structures.

Issues

Chandrachud CJ frames eight issues for the Court’s consideration, which I have reproduced briefly below:

1. Whether article 370 was a temporary provision;
2. Whether the amendment to article 367 – substituting “Legislative Assembly of the State” for “Constituent Assembly of the State” in article 370(3) – was valid;
3. Whether the entire Constitution could be extended to Jammu and Kashmir under article 370(1)(d);
4. Whether the abrogation of article 370 by the President under article 370(3) is constitutionally valid absent the recommendation of the Constituent Assembly of the State;
5. Whether the declaration of Governor’s Rule and the subsequent dissolution of the Legislative Assembly are constitutionally valid;
6. Whether the emergency proclamation and its subsequent extensions are constitutionally valid;
7. Whether the Jammu and Kashmir Reorganisation Act 2019 – which bifurcated the State into two Union Territories – is constitutionally valid; and
8. Whether the conversion of the State into a Union Territory while a state of emergency subsisted constitutes a valid exercise of power.

We can bracket the first four issues – which deal with the abrogation of article 370 – into one larger class, the fifth and sixth issues – which deal with emergency rule in the State at the time – into another, and the last two issues – which concern Jammu and Kashmir’s statehood – separately. We will unpack the first class of issues here.

The Events of August 2019

Before I begin, a brief summary of the events challenged by the petitioners is in order.

The President of India issued Constitutional Orders 272 and 273 under article 370(1) on 5 and 6 August 2019 respectively. These orders reworked the relationship between the Union of India and the State of Jammu and Kashmir by amending article 370, which had hitherto set the terms of this relationship.

While articles 1 and 370 themsleves applied to the State – as provided in article 370(1)(c) – article 370(1)(d) declared that “such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify” (emphasis added). A proviso appended to this clause mandated the “concurrence of [the Government of Jammu and Kashmir]” in all matters apart from those specified in the Instrument of Accession.

Article 370, in clause 3, also laid down its mode of amendment or abrogation: the President could, via notification, amend or render inoperative the article. A crucial proviso to the clause stipulated the recommendation of the Constituent Assembly of the State of Jammu and Kashmir as the condition precedent of such notification. However, the Constituent Assembly of Jammu and Kashmir was dissolved in 1957. A bare reading would yield the conclusion that article 370 is unamendable and unrepealable, unless a new Constituent Assembly is convened (or the old one reconvened).

This amendment track was circumvented. The President issued CO 272 on 5 August, adding a new clause to article 367. The newly inserted article 367(4), inter alia, read the phrase “Constituent Assembly of the State referred to in clause (2)” in article 370(3) as “Legislative Assembly of the State.” What this achieved is it made the recommendation of the state legislature the condition precedent – obviating the need to set up a new constituent assembly.

On the heels of this notification, the Rajya Sabha – since the powers of Jammu and Kashmir’s legislature were vested in Parliament under an Article 356 Proclamation – approved a Statutory Resolution recommending the President render inoperative all of article 370 except for a clause stating that the Constitution would apply to the state, notwithstanding anything to the contrary. The next day, the President issued CO 273, whereby, under the authority of article 370(3) read with article 370(1), article 370 was abrogated.

Constituent Assemblies and Interpretive Gymnastics

CO 272’s substitution of “Legislative Assembly of the State” for “Constituent Assembly of the State” was found to be invalid. As Chandrachud CJ writes, “Paragraph 2 [of CO 272] couches the amendment to Article 370 in the language of an amendment or modification to Article 367 but its true import is to amend Article 370” (para 382). Moreover, CO 272 made two different changes to the proviso to article 370(3): first, it replaces the Constituent Assembly with the Legislative Assembly as the recommending body; and secondly, it makes a new arrangement at variance with that specific Constituent Assembly (para 383).

However, this did not, to the Court, pose any hindrance to the abrogation of article 370 with CO 273. This is because the Court read the proviso to article 370(3), which stipulated the recommendation of the Constituent Assembly as a condition precedent, to mean that the Assembly’s recommendation was not binding on the President – in whom the “substantive power” of the provision was vested (para 346. d.). This would go on to form the basis – along with the lack of any mala fides – of its holding that CO 273 was constitutionally valid (para 430).

Chandrachud CJ supports this interpretation through the history of the ratification process as decided by the Ministry of States. However, article 370 – and the proviso to article 370(3) in particular – has a distinctive history, which the Court does not acknowledge here. Article 370, as Petitioners submitted, had the participation and consent of the people at its heart. The inclusion of the proviso, then, was no accident – it served the specific purpose of keeping the People centre-stage. This history of the proviso goes unnoticed and, with respect, renders the Court’s analysis of article 370(3) incomplete and incorrect.

Moreover, even if the Constituent Assembly’s recommendation was not intended to be binding on the President, the Court does not entirely address the fact that a recommendation from the Assembly is necessary before the President issues a notification under article 370(3). In responding to this, Chandrachud CJ writes, “[The Constituent Assembly of Jammu and Kashmir] was not intended to be a permanent body but a body with a specific remit and purpose. The power conferred by the proviso to Article 370(3) was hence something that would operate in a period of transition when the Constituent Assembly of Jammu and Kashmir was formed and was in existence, pending the drafting of the State Constitution” (para 346. d.).

This reasoning ignores how the Constitution’s drafters explicitly stipulated the recommendation of the Constituent Assembly as a precondition in the clause governing the article’s abrogation. That is to say, if we imagine article 370 as a timeline, with the gradual extension of the provisions of the Constitution at different intervals, abrogation would be, temporally speaking, the last event. For the clause to nonetheless require the Assembly’s recommendation belies the Court’s argument that the Assembly’s temporary nature translates into the President possessing the power to unilaterally issue a notification under article 370(3).

What, then, of article 370’s transience? Does the dissolution of the Constituent Assembly transform article 370 into a permanent provision? The Court points out that article 370 was inserted in the Constitution as a temporary provision. It infers from this that the dissolution of the Constituent Assembly could not render the article permanent (para 346. f.). However, the stated temporariness of a provision cannot override – even as an interpretive guide – the specific and explicit conditions that must be satisfied for it to be amended or repealed – even if it places “temporary” articles on the same level as other provisions in the Constitution.

Moreover, the Court does not engage the alternative argument of reviving the Constituent Assembly advanced by Petitioners. The dissolution of the Assembly does not render the article permanent. A historical reading of article 370(3) indicates that more than the Constituent Assembly as an institution, it is the constituent power of the people of Jammu and Kashmir that was represented. Therefore, keeping this in mind, a new Constituent Assembly that is the expression of the people’s sovereignty would also satisfy the requirements of article 370(3), while still honouring the distinction between temporary and permanent provisions.

First as farce, then as tragedy

The other relevant portion of CO 272 was the application of all the provisions of the Constitution to the State of Jammu and Kashmir. While part of Petitioners’ challenge hinged on whether the Constitution can be extended wholesale – which the Court rejected, citing its gradual extension over the years – the submissions also pointed out the absurdity of the President seeking his own concurrence in issuing a notification under article 370(1)(d). The Court acknowledges, too, that “[t]he purpose which the [condition mandating the concurrence of the state government] seeks to serve (collaboration between the federal units and representative democracy) would be lost if the President secures his own concurrence while exercising the power” (para 426).

However, the Court comes up with an inventive reading of articles 370(1)(d) and 370(3) to find CO 273 valid, as CO 272 – to the extent that it replaced the recommendation of the Constituent Assembly with that of the Legislative Assembly – was found invalid. “The effect of applying all the provisions of the Constitution to the State through the exercise of power under Article 370(1)(d),” Chandrachud CJ observed, “is the same as an exercise of power under Article 370(3) notifying that Article 370 shall cease to exist, that is, all provisions of the Constitution of India will apply to the State of Jammu and Kashmir, except for the fact that the former can be reversed while the latter cannot” (para 427. a.).

As a result of this, Chandrachud CJ continued, invoking Mohd Maqbool Damnoo v State of Jammu and Kashmir, “the principle of consultation and collaboration underlying the provisos to Article 370(1)(d) would not be applicable where the effect of the provision is the same as Article 370(3). Since the effect of applying all the provisions of the Constitution to Jammu and Kashmir through the exercise of power under Article 370(1)(d) is the same as issuing a notification under Article 370(3) that Article 370 ceases to exist, the principle of consultation and collaboration are not required to be followed” (para 427. d.) (emphasis added). The concurrence of the state government under article 370(1)(d), therefore, is not required.

In other words, the Court finds that since the outcome of the power exercised under article 370(1)(d) here – extending all the provisions of the Constitution to the State – is the same as a prospective outcome contemplated under article 370(3) – after an abrogation notification, the entire Constitution will naturally apply to the State – the President can seek his own concurrence because the President can anyway, as the Court discussed earlier, unilaterally issue a notification under article 370(3). Farce morphs into tragedy somewhere in the process.

The Court is, through this interpretive exercise, importing a different condition from a different clause in the article – noting, the entire time, the difference between notifications issued under the two provisions. A notification under article 370(3), irreversible as it is, should require a more rigorous condition. However, since the Court has interpreted the proviso to article 370(3) to denude the Constituent Assembly of any power, a notification which finally extended the Constitution to the State would require a lower threshold to cross. It is to avoid the illogicality of its reading of article 370(3) that it engages in a similarly absurd reading of article 370(1)(d).

Concluding remarks

Constitutions are, to state the obvious, documents about power. At their best, constitutions attenuate and disperse power – not just naked state coercion but also, for example, the power of federal governments and parliaments. Constitutions, however, can also consolidate and concentrate power, allowing large institutions to impose their will on individuals or smaller institutions.

In Re: Article 370 comprises, at its core, questions about who wields power, what safeguards we erect in the face of power, and how one ought to wield power. Unfortunately, however, the Court has opted for a vision of the Constitution that blinds itself to brazenly disingenuous constitutional acts – practices that would enrich incipient scholarship on “abusive constitutionalism.”

The abrogation of article 370 presented one of the most seemingly complicated constitutional issues before the Court. The Union Executive and Parliament engaged in practices that, endorsed by the highest court in the land, will reverberate across India’s constitutional architecture. In Re: Article 370 was the Court’s opportunity to ensure the incredible power that the Constitution vests in the Union Executive and Parliament is not abusively exercised and to read the Constitution in a manner that diffuses some of that power. Regrettably, those will be the tasks of a future Court.

Guest Post: Constitutional Pluralism in the Article 370 Hearings

[This is a guest post by Kushagr Bakshi.]

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Recently, the Indian Supreme Court finished hearing oral arguments on a batch of petitions challenging the constitutional validity of The Constitution (Application to Jammu and Kashmir) Order, 2019 which extended all provisions of the Indian Constitution to Jammu and Kashmir. As has been explained previously, by imposing a state of emergency and substituting the phrase ‘legislative assembly’ in place of ‘constituent assembly’ in Article 370 through a presidential order, the central government bypassed the requirement of having a democratically elected body of the state express their voice with regards to any future constitutional amendments related to the state. Subsequently, through a statutory resolution in the Upper House of the Indian Parliament, the central government abrogated most of Article 370 and thereby the state’s constitutionally mandated autonomous status. Finally, Parliament also passed the Jammu and Kashmir Reorganization Act, 2019 which bifurcated the state into two Union Territories, namely Jammu & Kashmir and Ladakh.

The petitioners’ arguments challenging the constitutional validity of the events of 2019 can broadly be grouped into three heads. First, they argued that the procedure followed to abrogate Article 370 was manifestly arbitrary, contrary to the rule of law and the principles of the Indian constitutional scheme. Second, they also argued that upon the Constituent Assembly of Jammu and Kashmir passing the Jammu and Kashmir Constitution, 1956 and dissolving, Article 370 lost its temporary character and was essentially frozen in time. Finally, the petitioners challenged the validity of the Reorganization Act, specifically contending that the Union is not constitutionally empowered to downgrade a state to a Union Territory.

However, in the midst of these arguments, the Court pondered upon the nature of the relationship between the Constitution of India and the Constitution of Jammu and Kashmir. While the Court is unlikely to hand down an authoritative ruling on this relationship, the exchanges between the judges and lawyers offer us a valuable avenue to explore. By analysing the Jammu and Kashmir Constituent Assembly Debates, this piece examines the nature of the relationship envisaged by the two constitutions. I argue that the constitutional principle that undergirded the previously existing constitutional relationship between India and Jammu and Kashmir is heterarchy. I go on to show that the relationship between the Jammu and Kashmir and India is best understood as heterarchy stretched to a radical interpretation, constitutional pluralism.

On Supremacy and the Constitutional Relationship

Jammu and Kashmir has often been considered exceptional and an exemplar of asymmetrical federalism in India, in large part due it being the only state in India to have its own constitution. The general consensus on the Jammu and Kashmir Constitution is that it was authorized by and therefore subject to the Indian Constitution. In fact, the before the Supreme Court, the Government of India propagated a similar view. They argued that upon the application of the entire Constitution of India, the constitutional scheme did not permit a situation with a second constitution setting forth a governance system for the state. Drawing from this, they argued that the Indian Constitution permitted the President to exercise constituent power vis-a-vis Article 370, especially since the Constituent Assembly of Jammu and Kashmir had been dissolved.   

However, a previous decision of the Indian Supreme Court and the petitioners’ arguments challenge this view. The petitioners instead constructed the relationship between the Constitution of India and the Constitution of J&K as complementary with Article 370 serving as tunnel for the traffic. They went on to argue that refrains to ‘One Nation, One Constitution’ have no grounding in the Indian Constitution which reinforces the notion of creating autonomous states. On this reading the Jammu and Kashmir Constitution does not exist within the Indian Constitution as a subnational constitution. For the most part, the Judges steered clear of this debate. Yet when emphasizing that the integration of Jammu and Kashmir in 1947 was a political fact and complete, Justice Khanna framed the question this piece seeks to answer: which is superior?

On Heterarchy and Constitutional Pluralism

While Article 370 marked the formal recognition of the demand for a constituent assembly for the state, this demand originated as a claim for local democratic governance against the ‘outsider’ Dogra kings. During the negotiations with the central government over the drafting of Article 370, the state government expressed this demand as concerns regarding the prevention of external (in this case, Indian) domination of the state. Responding to their history of monarchical rule, imposed by a dynasty they viewed as outsiders, the state government was keen to protect local democratic governance, through autonomy.

In its final form, Article 370 reflects a resolution of these concerns. Through inserting consultation and concurrence requirements for extending national legislative competency and provisions of the Indian Constitution to the state, the state government created a system of constitutional interaction between the two governments which would prevent the Union from exercising unilateral jurisdiction and therefore, domination. This heterarchy, that is the prevention of domination of one unit of government by another is best reflected in Article 370(3). While the provision allows the President of India to modify or declare the entire article inoperative, they can only act upon receiving a recommendation from the constituent assembly of the state. Instead of structuring the relationship between India and Jammu and Kashmir as one where the central government occupies a dominant position over the state government, Article 370 provided a system of governance premised on consultation and consent which retained the autonomy the people of the state desired.

The final form of this relationship was cemented by the Constituent Assembly of Jammu and Kashmir. But first, the Assembly too was confronted by questions of its powers and limitations. The Assembly debates shows that the members of the Assembly saw it as a sovereign body, enjoying the confidence of the people, unrestrained by previous happenings, free to decide on all questions as an ‘independent man’. Claiming authority as a representative of the people to exercise constituent power, the Assembly debated the future of their constitutional relationship with India (J&K CAD Vol I. pp. 15-19, 75-85). The High Court of Jammu and Kashmir (operating outside the Indian framework then) upheld this view, finding that despite Article 370, the state government retained unfettered internal sovereignty and was capable of exercising legislative and constituent authority.

For the Assembly, the relationship between Jammu and Kashmir and India was based on a commitment to similar transformative constitutional principles, envisioning a permanent federal scheme which allowed the people of the state to safeguard their autonomy while establishing a cooperative relationship between the Union and the State. Its approach was undergirded by the heterarchical principle embodied in Article 370 (J&K CAD Vol I. pp. 105-110). As M.A. Beg explained,

We admit that Article 370 is a temporary one. But in what sense of the term? Let me tell this House that when this Article was being framed the title and heading was never suggested to us and in fact we do not bother for this. We made this clear to the representatives of the Government of India that the temporary character of Article 370 is explained by the fact that the Kashmir Constituent Assembly which has been charged with the task of framing the Constitution and this power is recognized by Article 370, is in the process of framing the same. So long as it is not completed, Article 370 will remain there and when it reaches completion, we shall give to Pal what is Pal’s and to Peter what is Peter’s. That is centre will have the acceded subject and the rest will remain here. Article 370 will have to be accordingly altered. It would not mean that the Kashmir State will cease to have its special position. Amending Article 370 may be necessary at the time when we finalize our Constitution. But even then, legally Constitution, as it cannot in any way rob Kashmir of its special privilege and position, given to it by common agreement. Article 370 is therefore temporary till we complete our Constitution. Therefore its spirit will be incorporated in that Constitution. (J&K CADVol I., at 694)

While Article 370 was envisaged as temporary, its central principles of consultation, concurrence, and primacy of the Jammu and Kashmir Constituent Assembly (and eventually Constitution) were to form the basis of the relationship between India and Jammu and Kashmir. When debating a new constitution for the state, they argued that many provisions of the Constitution of India were too rigid and unsuitable for the state, thereby stating their desire for a new order, which while sharing similar underlying normative commitments with the Indian Constitution would have provisions suited to the contextual concerns and demands of the people of the state (J&K CAD Vol. I 650-700).

This vision of the Assembly was put into action through the ‘Basic Order’ read with the Jammu and Kashmir Constitution. Together, they envisaged a constitutional regime in the state which was marked by crucial departures from the Indian constitutional scheme. For instance, differing from other states, Jammu and Kashmir was to have an elected head of state (J&K CAD Vol I., at 480). Additionally, federal emergency provisions of the Indian Constitution could only be applied to the state with the concurrence of the state government state (J&K CAD Vol I., at 663-4). Most importantly, any future amendments to the Constitution of India were declared inoperative unless applied in accordance with the provisions of Article 370 which mandated consultation and concurrence of the government of the state. Provisions relating to the reorganisation of states while included required the consent of the state legislature for their application to Jammu and Kashmir.

The J&K Constitution also provided for a varied rights regime. While certain fundamental rights were applicable to the state, rights like the right to property, equality of employment et al were excluded to ensure that the state could carry out its economic program of redistribution state (J&K CAD Vol I., at 651-3; 803-4). Further, the power to introduce reasonable restrictions upon the application of other fundamental rights and freedoms in the state was reserved with the state legislature instead of the Parliament. Instead, the Constitution foisted a host of duties upon the state government which provided a roadmap through positive rights to the planned state and society envisioned by the Assembly. Finally, to enforce this new rights regime, the Constitution also carved out autonomy over local legislative and executive power. For instance, differing from the other states, residuary executive and legislative authority was retained with the state (J&K CAD Vol. I, at 565, 648, 662, 696, 849, 858). Additionally, the Constitution secured the scope for exercise of local expertise by preventing the centre from imposing federal finance provisions of the Indian Constitution upon the state. Finally, to cement this relationship, Article 147 also declared certain articles of the state Constitution as beyond the powers of legislative amendment.

Fundamentally, the Jammu and Kashmir Constitution is not an example of subnational constitutionalism as its authority is not derived from the Indian Constitution. Instead, it makes its own autonomous claim to authority and provides for a varied rights regime, local authority to enforce such a rights regime and structures of political representation which protect the exercise of voice by the people of the state. In this sense, it presents as constitutional pluralism where the constitutional order of Jammu and Kashmir and the constitutional order of India exist autonomously and interact with each other. These two orders are held together by shared normative transformative commitments and a constitutional link. This link, Article 370 in the Indian Constitution, is the tunnel between the two constitutional orders.

The Implications of Pluralism

So far, I have argued that the constitutional relationship between Jammu and Kashmir and India is best understood as constitutional pluralism. This relationship presents as a version of systems pluralism that is, multiple (in this case, two) coordinated constitutional orders. As such, the answer to Justice Khanna’s question is quite simply, neither.

As for the preliminary objection of pointing me to Pu Myllai Hlychho, Justice Balakrishnan’s opinion with respect to the untenability of an interpretation of the sixth schedule which would coordinate a Constitution within a Constitution is limited to the interpretation of the role of the Governor in context of the Sixth Schedule Additionally, I’m not attempting to construct the Jammu and Kashmir Constitution as existing within the Indian Constitution. Instead of looking at this as an example of subnational constitutionalism, I have argued that these are two separate and autonomous constitutional orders which while interacting with each other are not legitimized by the other.

The Indian Supreme Court has in the past suffered from not considering the Jammu and Kashmir Constitution or Constituent Assembly Debates in their decisions. But as I have shown, the debates reveal valuable facets of constitution making in the state, which if considered, offer us a radical interpretation of the constitutional relationship between India and Jammu and Kashmir. On this interpretation, the actions of the central government in 2019 are constitutionally invalid. But beyond this case, these debates also offer us a way to re-evaluate the Indian jurisprudence on the state as well as other asymmetrical provisions of the Indian Constitution.