Behind legal challenge to Article 370: promise to Jammu and Kashmir by framers of Constitution

Unique status

On May 27, 1949, the Constituent Assembly of India cleared the draft Article 370, as per the terms in the Instrument of Accession which was signed in 1947. While other provisions of the Constitution were debated in the Constituent Assembly after deliberations in its drafting committee, the situation with Article 370 was different. According to constitutional scholar AG Noorani, Article 370 was discussed for five months by then Prime Minister of India Jawaharlal Nehru and his colleagues, with then Prime Minister of Jammu and Kashmir Sheikh Abdullah and his colleagues, from May to October 1949.

The state of Jammu and Kashmir is the only state in the Union of India which negotiated the terms of its membership with the Union. In 1949, the Constituent Assembly granted its imprimatur to this agreement.

The three guarantees were also codified in Article 370. First, asymmetrical federalism would mean that India would not make laws in Jammu and Kashmir except for three subjects — Defence, External Affairs, and Communication included in the Instrument of Accession. Parliament could make laws beyond them only with the ‘concurrence of the Jammu and Kashmir Constituent Assembly’.

Several states have different constitutional guarantees. These are codified in Articles 371, 371A- I for states including Andhra Pradesh, Maharashtra, Gujarat, and those in the North East. The petitioners argue that this asymmetrical federalism cannot be termed “special status”, which needs to be removed to bring J&K “on par” with the rest of India.

Second, except for Article 1 which declares India as a ‘Union of States’ and Article 370, the Constitution of India would not be applicable to Jammu and Kashmir. For the rest of India, the Constitution lays down an elaborate procedure in Article 367 to enlarge or curb state power through a constitutional amendment. However, for J&K, the Constitution provides that a mere executive action under Article 370 would suffice. This, the petitioners argued, is the autonomy guaranteed by the Constitution itself.

The text of Article 370 itself is rather unambiguous. Neither side can alter it unilaterally, except in accordance with the terms of that provision.

Third is the framing of the state’s consent. As per Article 370(3), the special status of Jammu and Kashmir could not be amended or repealed, unless the Constituent Assembly of Jammu & Kashmir recommended it.

The question

The key challenge against the abrogation is framed in this simple question: Can Parliament “do indirectly what it cannot do directly?” Through the 2019 Presidential orders, Parliament brings in a provision giving new meaning to “constituent assembly of Jammu and Kashmir”, to mean “Legislative Assembly of Jammu and Kashmir”, and then assumes the powers of the Legislative Assembly through President’s rule to revoke Article 370. Had there been no President’s rule, would the J&K legislature have allowed such a move? The petitioners have also questioned how the Constituent Assembly can simply be assigned a new meaning.

In ruling on these issues, the Supreme Court will also define how far Parliament can stretch the original limits set by the framers of the Constitution to suit its current needs.