As the five-judge Constitution Bench of the Supreme Court headed by Chief Justice DY Chandrachud pronounced its verdict today on petitions challenging the abrogation of Article 370, political parties of Jammu and Kashmir, who were petitioners, had been hopeful as well as pessimistic about the outcome.
It was not only the abrogation of Article 370, which was under challenge but the bifurcation of the erstwhile Jammu and Kashmir state into union territories (UTs) of Ladakh and J&K. The case was related to the two presidential orders under which these changes were made in 2019.
“We don’t know what is going to happen on Monday. We are waiting for the verdict. Let the verdict come…I can only pray that the decision comes in our favour,” said former J&K Chief Minister Omar Abdullah had said before the verdict was out.
The government had issued a series of orders asking all district heads to keep an eye on the situation. On Sunday evening, a circular was issued asking all social media platforms to act “responsibly and refrain from sharing rumours, fake news, hate speech or obscene, violent and defamatory content.”
The advisory issued by the Cyber Police said social media users were cautioned not to indulge in the propagation of terrorist and secessionist ideology and false narratives. The government had also issued a list of the officials who had been deployed as magistrate on duty across the Kashmir region.
Nine persons have been booked by the Jammu and Kashmir Police allegedly for posting hate speeches on social media. The police said it has taken legal action against two persons for uploading and sharing hateful content on social media platforms. The police also said “to uphold peace and order” it has taken measures against some people for misusing social media to spread rumours.
Meanwhile, Iltija Mufti, media advisor to Mehbooba Mufti said, “Two days before Supreme Court declares its verdict on Article 370, J&K Police declares punitive action against those ‘indulging in mischief on social media’ and ‘breachers of peace’. Seems like they already know the verdict.” She even went further and hazarded a guess. “The Supreme Court will uphold the unconstitutional revocation of Article 370 and nudge GOI to restore statehood (not a legally binding directive) along with a vague framework to restore democracy by holding elections.”
Before the abrogation of Article 370, the Jammu and Kashmir government had issued a series of orders, including forcing all non-locals to vacate the region. Amid a communication blackout and the arrest of thousands, including three former Chief Ministers, on August 5, 2019, the BJP-led government revoked Article 370 of the Indian Constitution. This action followed the issuance of Constitutional Order 272 by the then President, Ram Nath Kovind.
Constitutional Order 272 amended Article 367 and redefined the term ‘Constituent Assembly’ in Article 370(3), empowering the Jammu and Kashmir Legislative Assembly to propose the dissolution of Article 370. On the same day, the Rajya Sabha recommended the cessation of Article 370.
Subsequently, on August 6, 2019, the President enacted Constitutional Order 273, confirming the abrogation of Article 370. Later, on August 9, the Parliament passed the Jammu and Kashmir Reorganisation Act, leading to the bifurcation of the Jammu and Kashmir State into two Union Territories: Jammu and Kashmir and Ladakh.
Whether Ends Justify Means?
During the hearings in August, Attorney General R Venkataramani commenced his argument with a statement of Abraham Lincoln laying thrust on “balancing between losing the nation and preserving the Constitution”. The lawyers challenging the abrogation of Article 370 asked the court to move beyond the peace and development argument of the government.
“I’m also reminded of a famous statement made by Abraham Lincoln in 1864, in response to a border territories conflict issue. He talked about balancing the nation, losing the nation, and preserving the Constitution. He said while general law, life and limb must be protected. But, it's often a limb must be amputated to save a life, but a life is never wisely given to save a limb,” the AG said. “We want to say that Constitution will be preserved in the context of the processes, due processes, the fairness of the processes, and how these procedures are important for the integration of the Constitution on the one hand, and losing the nation on the other hand.”
CJI Chandrachud shot back, “But, equally, Mr. Attorney General, we can't postulate a situation where the ends justify the means also, right?”
History Of Article 370
During the hearing, many lawyers described Article 370 as a permanent feature of the Constitution of India, which cannot be removed.
Senior counsel Prashanto Chandra Sen argued: “The region consisted of a Muslim majority and the population had a choice between either going into Pakistan or India. Either being a majority in Pakistan or choosing to take a minority status in India. My Lords, they chose the latter. Sheikh Abdullah, who represented and had a hold over the population at that time, was responsible for this transition to India. Suppose there is a choice, a conscious choice made to remain a minority in a region, in the backdrop of the horrific violence of partition, when there is a constitutional promise in the nature of Article 370. In that case, it should be strictly construed.”
During the hearing in August, the lawyers challenging the abrogation of Article 370 even talked about its permanency.
“Kashmir acceded differently because it acceded post-15 August 1947. The rest of the states 14 concluded their accession as well as standstill agreement before August 1947 because standstill agreement was a pre-condition for Instrumental of Accession,” senior lawyer Dinesh Dwivedi argued. He went on to say the consultation and concurrence were only for a temporary period till the Constituent Assembly came into being on January 26, 1956, and then, the only governing document was the Constitution of Jammu and Kashmir.
While Gopal Subramanium argued that Article 370 was not a repository of untrammelled power of application of Constitutional provisions. He argued sovereignty and unfettered powers of the Constituent Assembly have been recognised by the Indian Parliament.
Kapil Sibal argued, “Article 370 has been mentioned as a temporary provision, the Constitution does not mean, that it is capable of being abrogated, modified, or replaced, unilaterally. In actual effect, the temporary nature of this article arises merely from the fact that the power to finalize the constitutional relationship between the State and the Union of India has been specifically vested in the Jammu and Kashmir Constituent Assembly.”
Giving a historical perspective of Article 370, Z A Shah, counsel for the Jammu and Kashmir High Court Bar Association, argued it was a peculiar situation when J&K was given special status.
“The Dogra Maharaja entered into a standstill agreement only with the Government of Pakistan as the Government of India did not agree to enter into the standstill agreement. This was a situation before 1947. Now because of the extraordinary situation that arose in the State of Jammu and Kashmir, having no choice in the matter, Maharaja entered into this Instrument of Accession on 26th of October 1947. This gives the Union of India power to make laws for defence, communication and foreign affairs. He doesn't give any other power to them. Article 370, according to my perception, subsumes the sovereignty which was retained by Maharaja,” said Shah.
Shah argued Article 370 doesn't give power to the institution of Parliament to make any law it wishes to make for the state unless the State Government agrees to it, and both, with consultation and concurrence.
“Now, not only that, the Central government used Article 367 to get rid of Article 370 and then killed Article 367 itself. ..You use Article 367, you alter Article 370, you take it back and then you kill Article 367 itself. This is the manipulation part of it. It's not a legitimate action,” said Shah.
Sanjay Parikh also argued on the permanence of Article 370. He argued Article 370, provided the constitutional mechanism by which the Instrument of Accession was integrated into the Constitution of India. He argued Article 370 was temporary in the sense that it contained the principles which would govern the formation of the Indian Constitution as applicable to J&K, as well as the Constitution of J&K.
“Once that was achieved., the aim and object of 370 was fulfilled. Seeing each other, and meeting each other was converted into a relationship on mutually decided terms. It is this relationship which is permanent. This relationship could not be unilaterally altered,” said Parikh.
The State Can Be Turned Into UT?
Senior lawyer CU Singh had described the conversion of a state into UT as a violation of the basic structure and it can’t even be done under Article 368.
“What was tabled and what was passed by the Rajya Sabha, purportedly on August 5 was something contrary to Article 3 itself. So if they are founding their case on Article 3, I submit that that is ultra vires,” he argued.
Sibal also argued on the same lines: “You can't create a 15 Union Territory under Article 3 and convert it into a State into a Union Territory. That's contrary to all principles of a representative form of government. It doesn't allow the extinguishment of a State completely. Can you say that tomorrow Madhya Pradesh would be a Union Territory or Bihar would be a Union Territory? You can do to one, you can do it to all. You can have a presidential form of government. Create all States. Convert all States into Union Territory. By what stretch of imagination can you.”
North East And Special Provisions
Manish Tiwari had talked about the reorganisation of Jammu and Kashmir and its implications on the North-East as
Tiwari said, “Article 370 is succeeded by 370(1) and there are asymmetric guarantees which were given and those guarantees have implications of national security because the Constitution, while being a legal, legal political document, also performs a very important national security function in terms of integrating the periphery and the rest.”
Tiwari argued that the underlying principle of autonomy in Articles 370 and 371, is more or less the same and so therefore verdict of Article 370 will have implications for Article 371.
However, the solicitor general of India Tushar Mehta argued there difference “between temporary provision, which is Article 370, and special provisions with regards to other states, including North-East”.
“The Central Government has no intention to touch any part, which gives special provisions to North-East and other regions,” Mehta argued.
August 5, 2019
Lawyer Warisha Farasat during her arguments drew the attention of the bench about what happened on August 5 and August 6, 2019, in Jammu and Kashmir.
“Three former Chief Ministers were in detention. And these are all facts, three former Chief Ministers, most of your Legislative Assembly, the will of the people, is exercised by the Legislative Assembly were in some form of detention or the other either under the Public Safety Act and under sections 107-105, it's laughable,” Farasat argued adding that abrogation was a malice in law as the actions surrounding the abrogation itself indicate. “The abrogation of Article 370 was effected, secretly, unilaterally and coercively. What has happened is that the will of the people has been trampled upon and there can be no other reading in this regard.”