Before Supreme Court in Article 370 case: The constitutionality of Orders 272, 273, what they mean

The government will defend the legal manoeuvres of August 2019 this week. What are the key grounds of challenge to the abrogation of Article 370?

Srinagar's markets on the eve of the fourth anniversary of Article 370's abrogation. (Express Photo by Shuaib Masoodi)

5 min readNew DelhiAug 31, 2023 10:36 AM IST First published on: Aug 30, 2023 at 07:07 AM IST

For more than 10 days, the Supreme Court has heard arguments by petitioners challenging the abrogation of Article 370 of the Constitution which guaranteed special status to Jammu and Kashmir. The government will defend the legal manoeuvres of August 2019 this week.

What are the key grounds of challenge?

Validity of Constitutional Order 272

The petitioners argued that Article 370 had become a “permanent feature” of the Constitution that could not be made inoperable. Senior advocate Kapil Sibal argued that the provision is referred to as a “temporary provision” not because it can be terminated by the President, but because the provision gave the Constituent Assembly of Jammu and Kashmir the power to recommend changes to Article 370 until the state’s Constitution was enacted.

Once the Constituent Assembly ceased to exist, the President could not have by order revoked Article 370, Sibal argued.

The petitioners also discussed Article 147 of Jammu and Kashmir Constitution, which states “that no Bill or amendment seeking to make any change in…the provisions of the Constitution of India as applicable in relation to the State shall be introduced or moved in either house of the Legislature.”

Sibal argued that the J&K Constitution gave permanency to Article 370 once the Constituent Assembly was dissolved. So, without a Constituent Assembly, the President could not have exercised powers under Article 370(3), he argued.

Explained | What are Articles 370 and 35A?

The petitioners argued that since the J&K Constitution explicitly prohibited even moving any Bill to change the application of the Indian Constitution to the state, CO 272 (the President’s Order of 2019) cannot confer on the Legislative Assembly the power to recommend abrogation of Article 370. Therefore neither the J&K Assembly nor Parliament could have undone Article 370.
In the second part of that argument, a case was made that Article 367 has inherent limitations to be used to issue CO 272. The petitioners argued that an interpretative provision cannot be used for what is virtually an amendment. The power to amend the Constitution lies in Article 368 of the Constitution.

The petitioners cited hypothetical scenarios where such change under Article 367 would be impermissible. For example, senior advocate Gopal Sankaranarayanan argued that the President can’t issue a proclamation to the effect that the word “persons” under Article 21, which guarantees right to life, would mean “ persons accused of an offence”.

Validity of CO 273

The second proclamation by the President, issued on August 6, 2019, essentially sealed the abrogation of Article 370 by the Governor of the state.

The petitioners argued that Rajya Sabha cannot assume powers on behalf of the Governor even under Article 356 that the Legislative Assembly itself does not have. Article 356 states that during President’s Rule, “powers of the Legislature of the State shall be exercisable by or under the authority of Parliament”.

Sibal argued: “If you in principle say that Parliament can invert itself into a Constituent Assembly, then where do we go from there? Forget about this case, I am far more worried about our future.”

The second part of the argument rests largely on the role of a Governor during President’s Rule. Detailing the sequence of events in 2018 which led to President’s Rule in Jammu and Kashmir, the petitioners argued that the entire process was unlawful.

After the Mehbooba Mufti-led PDP-BJP alliance collapsed, then Governor Satyapal Malik dissolved the Assembly in November 2018. According to the J&K constitution, the Governor needed the aid and advice of the cabinet for this move — however, when the decision was taken, there was no cabinet in place. On December 19, 2018, when the proclamation of Governor’s Rule expired, a proclamation on Article 356 promulgating President’s Rule in the state was issued.

“There are no Council of Ministers in place, there’s no government in place, but he sends a report that the government cannot be carried out. Where is the basis for any of that?” Sibal argued.

While Governor’s Rule and President’s Rule are not under challenge, this argument was made to establish that Rajya Sabha’s recommendation assuming powers of the state Assembly during President’s Rule was unlawful. Sankaranarayanan argued that the manner of exercise of the power under Article 356 in this case amounted to a “fraud on the Constitution”. He argued that the safeguards provided in Article 370 could not be obliterated by the President by way of imposition of President’s Rule under Article 356.

Apurva Vishwanath

Apurva Vishwanath is the National Legal Editor at The Indian Express, where she leads the organizati... Read More