Owing to the revocation of Article 370[1], Jammu and Kashmir underwent a profound metamorphosis resulting in its reorganization into the union territories of Jammu and Kashmir, along with Ladakh.[2] Subsequently, the manner in which this restructuring was executed has encountered assertions of unconstitutionality, prompting several legal petitions challenging its validity. Importantly, among the multiple petitions contesting the constitutionality of this change, one case[3] is presently undergoing examination by a five-member bench of the Supreme Court, [4] at the time of writing.
The foundational justification of the revocation is said to be India’s proactive efforts to combat cross-border terrorism in the Jammu and Kashmir region, notably during the tenure of the Modi administration. Concomitant with the abrogation of Article 370, the Modi administration welcomed the nation into a new era and promised[5] the restoration of normalcy. However, an essential query – one that is frequently presented by opponents of the abrogation[6] arises – concerning the original promise extended to Jammu and Kashmir during its integration with India.[7] To address this inquiry, it becomes imperative to delve into historical records to discern whether an explicit commitment was made or if the integration was unrestricted, as otherwise argued.[8]
Article 370: Conditional or Unconditional Promise?
Jammu and Kashmir constituted one of the 565 princely states that remained largely outside the dominion of British colonial rule prior to 1947. The process of partition within the subcontinent, while decisive in shaping the trajectories of the newly established nations of Pakistan and India, cast Jammu and Kashmir into a state of profound uncertainty. This partition, conducted under the auspices of the Indian Independence Act,[9] did not delineate the inclusion of princely states within the territorial boundaries of either nation.[10]
The then Viceroy Lord Mountbatten advised the princely states to factor in considerations such as geographical location and religious affiliation in order to align themselves with one of the dominions.[11] While this counsel influenced the decisions of numerous states, the circumstances were more intricate in the case of Jammu and Kashmir. The princely state held a Muslim majority population,[12] yet its ruler, Maharaja Hari Singh, professed the Hindu faith. Similarly, just as the region of Jammu and Kashmir had a unique geographic position with borders touching both India and Pakistan, the Maharaja faced his own uncertainties on whether to align with one of the dominions or uphold an independent and unbiased stance.
The absence of military assistance from the British markedly diminished the practicality of upholding an autonomous position. Lack of a discernible strategy from the Pakistani leadership was one of several contributing factors to the shortcomings of the initial Kashmir insurrection. Nonetheless, it did help simplify the decision-making process for Maharaja Hari Singh who consequently sought the military capabilities of – and promptly formalized an Instrument of Accession to India. This act of accession was carried out with the anticipation that a referendum or plebiscite would be organized to ascertain the ultimate disposition of the state.
The Will of the People vs. Institutional Decisions
The promises through which the act of accession transpired also lend rationale by the classification of Article 370 within the Indian constitution as “temporary.” Numerous pronouncements[13] however, have affirmed that despite the marginal note designating it as a “temporary provision,” the article itself will “persist in effect” and has effectively assumed an enduring status within the constitutional framework. This leaves minimal scope for the assertion that Article 370 ceased to be effective subsequent to the enactment of the Jammu and Kashmir Constitution.[14] In fact, the ratification of Article 370 by the constituent assembly put the matter of the referendum to rest.[15]
At this juncture, the assertion that the decision to align with India involved a deliberate selection of minority status amidst the backdrop of the partition’s dreadful violence gains merit.[16] Henceforth, Article 370 emerges as a constitutional commitment that inherently demands interpretation in stringent conformity with the “will of the people.” In the context of complete annulment, the entirety of article 370 holds the potential for repeal as per article 370(3); nevertheless, this necessitates a proposal originating from the Constituent Assembly of Jammu and Kashmir. It is noteworthy that the Constituent Assembly was dissolved on January 25, 1957, devoid of any recommendation to nullify the article. In relation to established institutions, critics of the abrogation promptly assert that, in the absence of a constituent assembly, the annulment of Article 370 was executed under the pretext of “doctrine of colourable legislation.” This implies that the President indirectly amended[17] the constitutional provision in the absence of an agreement from the Jammu and Kashmir Constituent Assembly, violating the principle against indirect actions that mimic direct impermissible actions.
The 5-member bench of the Supreme Court has recently stated “In our established constitutional democracy, any recourse to the will of the people has to be expressed and sought in terms of established institutions.”[18] Advocates of the abrogation draw upon the authorization provided by the governor of Jammu and Kashmir to contend that institutional concurrence was secured, thus substantiating the legality of the abrogation. Evidently, the suspension of the assembly by the Governor of Jammu and Kashmir in 2018[19] precipitated the utilization of a presidential decree, a course of action that was subsequently prolonged through the abrogation of Article 370.
It is however, quintessential to note that the governor’s representation of the general populace and their will is rendered questionable by his disregard for the counsel of the council of ministers. The governor’s position in giving consent to the Presidential order that revoked the status of Jammu and Kashmir contrasts starkly with the sentiment of the people, drawing parallels with the actions of Hari Singh. One aspect remains evident i.e., the intentions of the leaders and institutions that have presided over Jammu and Kashmir at various junctures consistently espoused the cause of autonomy. Even Sheikh Abdullah, the Prime Minister of Jammu and Kashmir in 1952 highlighted in his communication to Nehru how Shri Gopalaswamy Ayyangar had articulated that Article 370 was not inherently a permanent element of the Indian Constitution and “when the time was ripe the provision could he wiped off the Constitution.”[20] This distinctly illustrates that while assurances were extended, they were accompanied by considerable reservations.
But frequently contended is the notion that the 1954 session of the Constituent Assembly, which strongly endorsed the accession of Jammu and Kashmir to India, effectively laid to rest any discussions pertaining to a plebiscite. Adding to this, the endorsement of a fresh constitution for Jammu and Kashmir, mirroring the design of the Indian Constitution, ultimately closed the discourse on the matter of conducting a plebiscite. Nonetheless, this argument confines its perspective to a restricted historical context, disregarding the occurrence in 1958 when Sheikh Abdullah’s temporary release from incarceration coincided with the official establishment of the Plebiscite Front, spearheaded by Mirza Afzal Beg. In opposition to Abdullah’s prior advocacy for the state’s integration with India, a shift in his position emerged as he started endorsing the concept of a plebiscite.
At this juncture, it becomes imperative to illuminate the resolute stance taken by India subsequent to the 1972 conflict, culminating in the Simla Agreement[21] — a pact inked by the Prime Ministers of India and Pakistan. Within this agreement, Pakistan concurred to “settle their differences through bilateral negotiations…”[22] subsequently enabling India to construct a narrative suggesting that, given the bilateral commitment to address their issues, the United Nations’ involvement was no longer required.
Special Status – a Cohesive Stand for Autonomy or Sovereignty?
Considering the implausibility of a plebiscite, presuming a voluntary accession and alignment of institutional decisions with public sentiment, a clear certainty emerges i.e., both institutions and the public fervently resist any erosion of their civil liberties. This likely underlies the consistent outcry against the abrogation and the resultant restriction of the freedoms historically enjoyed by Jammu and Kashmir. Article 370 granted the princely state a distinctive status of autonomy within the broader Indian Union. In very clear terms, the authority of the Union Parliament to legislate for the state is circumscribed[23] requiring consultation with the State Government, and is restricted to certain delineated spheres, including defense, foreign affairs, and communications, which were explicitly outlined in the Instrument of Accession.
This constitutional stipulation has served as a foundational element in India’s complex relationship with Kashmir, the sole Muslim-majority territory that chose to accede to India during partition. The article granted the state a defined measure of self-governance, encompassing its independent constitution, a distinct flag, and the capacity to enact laws. Nevertheless, the central government retained jurisdiction over foreign affairs, defense, and communications. Consequently, Jammu and Kashmir retained the ability to establish its own regulations pertaining to permanent residency, property ownership, and fundamental rights. Moreover, it retained the prerogative to restrict individuals from outside the state from acquiring property or establishing residency within its borders.
But is a claim of autonomy being conflated with sovereignty? Clearly, the Indian Constitution endowed Jammu and Kashmir with a specific level of autonomy, akin to what other states acceding to India also possess while remaining within India. It follows, that Jammu and Kashmir preserved its autonomy through Article 370, yet it fully surrendered its sovereignty, aligning itself with the Indian Union. Solicitor General Tushar Mehta has advanced this line of argument in court,[24] but interestingly The Chief Justice observed that opposing contention also held validity, i.e., under Article 370, a “modicum of internal sovereignty was not ceded to the Union.”[25]
The presence of exceptional privileges such as Jammu and Kashmir’s distinctive flag and its separate constitution, in contrast to those available to other states, could potentially lead to an interpretation of the Chief Justice’s statements indicating that the claims of Jammu and Kashmir encompass an aspect of sovereignty and transcend mere autonomy. This unfolds a Pandora’s box of arguments, particularly when viewed through the lens of international law. Sovereignty, which was conventionally defined as “the identification and monopoly of paramount control in a society” no longer maintains the stark dichotomy it once was. In its modern iteration, it assumes a more nuanced definition, resembling a collection of properties and attributes. Due to the evolution beyond rigid definitions of independence and secession, International academics like Karen Heymann are advocating for an agreement based on an intermediate status called “earned sovereignty.” The endorsement of an agreement formulated within the framework of earned sovereignty through a plebiscite would finally deliver the long-awaited and promised plebiscite for Kashmir.
Notably, this matter appears to have been addressed by the Supreme Court previously, as indicated in its observation:
The State of Jammu & Kashmir has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India. It is therefore wholly incorrect to describe it as being sovereign in the sense of its residents constituting a separate and distinct class in themselves. The residents of Jammu & Kashmir, we need to remind the High Court, are first and foremost citizens of India.
It provokes curiosity to contemplate whether the five-member bench court will uphold this precedent. Nonetheless, the economic and developmental justifications put forth by the central government to support the ‘full integration’[26] of the state have been extensively scrutinized by authoritative sources.[27] Contrary to these claims, considerable accounts[28] highlight that the autonomy enjoyed by Jammu & Kashmir has significantly contributed to its developmental advancement. For instance, the state’s poverty metrics were a striking 10% of households below the poverty line compared to the national average of 22% in 2019, illustrating merely one facet of this reality that Jammu and Kashmir may not have needed India for development.
Conclusion
A.G. Noorani notes[29] that the will of Kashmiri leaders was to maintain autonomy whereas that of Indian leader was ensure closer integration of Jammu & Kashmir. Given that Article 370 was intricately tied to and derived its legitimacy from the conditions of the state’s accession to the Indian Dominion, it is reasonable to contend that revoking this article equated to revoking the very act of accession itself. The abrogation of Article 370 signifies the conclusion of a republic’s concept rooted in democratic inclusiveness of varied regions, considering their distinct histories and aspirations.
In legal terminology and in accordance with the opinions of esteemed and academics,[30] Article 370 assumed a status of permanence in the relationship between the state and the central government. Accordingly, it seems that lacking consent, the actions taken by the government were entirely contrary to the constitution. Therefore, the abrogation of Article 370 denotes the culmination of a republican framework rooted in the democratic incorporation of diverse regions, mindful of their unique histories and aspirations, potentially positioning the India Union perilously close to being labelled – as undemocratic.
[1] The Constitution of India 1949, ss. Part XXI, Article 370
[2] The Constitution (Application to Jammu and Kashmir) Order (2019 C.O. 272); The Jammu and Kashmir Reorganisation Act, 2019 (Act No. 34 of 2019), ss. 3, 4
[3] Mohd Akbar Lone v. Union of India, Writ Petition (Civil) No 1037 of 2019
[4] “SC Agrees to Entertain J&K People’s Conference Plea Against Abrogation of Article 370”, India Today, Feb. 07, 2022.
[5] “PM Modi Reaches Out to J&K with Promise of Early Polls, Restoration of Statehood”, The Times of India, Aug. 09, 2019, Prime Minister Modi stated “I assure you that the situation will slowly normalize and your problems will reduce”
[6] Ibid., Concluding her arguments, Sr. Adv. Guruswamy asserted that “we the people of India, through our drafters made a promise to the people of Jammu and Kashmir.”; Sr. Adv. Dhavan, Sr. Adv. Dwivedi also made similar arguments.
[7] R. SAI Spandana and Gauri Kashyap, “Abrogation of Article 370 | Day 9: What Makes the Relationship Between India and J&K Binding, Asks CJI”, Supreme Court Observer, Aug. 10, 2023
[8] Satya Prakash, “Integration of J&K with India Absolute, Transfer of Sovereignty Complete, Says Supreme Court”, The Tribune India, Aug. 10, 2023: The Chief Justice of India, DY Chandrachud emphasized that the relinquishment of Jammu and Kashmir’s sovereignty to India was unequivocally absolute at the time of its accession in 1947.
[9] Indian Independence Act, 1947 c. 30
[10] ibid., ss 7(1)(b) states the “suzerainty of His Majesty” concerning these princely states had been terminated.
[11] Lord Mountbatten’s Address to The Chamber of Princes, July 25, 1947
[12] Khuram Iqbal and Umair Pervez Khan, “Why the First Kashmir Insurrection Failed” 70 Pakistan Institute of International Affairs 103-116 (July 2017).
[13] State Bank of India v. Santosh Gupta, Civil Appeal Nos. 12237-12238 of 2016; Rehman Shagoo v. State of Jammu, Civil Appeal Nos 12240-12246 of 2016.
[14] Sr. Adv. Dinesh Dwivedi has made this argument in the Supreme Court with little support from the co-petitioners
[15] A.G Noorani, Article 370: A Constitutional History of Jammu and Kashmir (Oxford University Press, New Delhi, 1st edn., 2011), Chapter 9: The Wreck of Article 370
[16] The Hindi Bureau, “Supreme Court Hearing on Article 370 Abrogation | Day 8”, The Hindu, Aug. 22, 2023, see Senior Adv. P.C. Sen’s arguments
[17] n.2, ss. 2(d) “constituent assembly” was replaced with “legislative assembly”.
[18] Dhananjay Mahapatra, “No Question of Brexit-Like Referendum on J&K – Supreme Court on Article 370”, The Times of India, Aug. 09, 2023.
[19] Hakim Irfan Rashid, “Jammu & Kashmir Governor Dissolves Assembly After Rivals Stake Claim to Govt Formation”, The Economic Times, Nov. 22, 2018.
[20] A. G. Noorani, “Review: How and Why Nehru and Abdullah Fell Out” 34 Economic and Political Weekly 271 (1999).
[21] Agreement Between the Government of India and the Government of the Islamic Republic of Pakistan on Bilateral Relations (Simla Agreement), Simla, 2 July 1972
[22] ibid., ss.1(ii)
[23] n.1, Article 370(1)(b)
[24] R. SAI Spandana and Gauri Kashyap, “Abrogation of Article 370 | Day 10: Constitution of J&K is Merely an Act Providing for Internal Governance of the State, Argues Solicitor General”, Supreme Court Observer, Aug. 24, 2023.
[25] ibid
[26] Rakesh Mohan Chaturvedi, “Article 370 Cause of Corruption and Terrorism: Amit Shah”, The Economic Times, Aug. 06, 2019.
[27] Medha, “The Revocation of Kashmir’s Autonomy: High-Risk Hindutva Politics at Play” German Institute of Global and Area Studies (GIGA) 8 (2019).
[28] Haseeb a Drabu, “Opinion | Was Special Status a Development Dampener in J&K?”, Mint, Aug. 08, 2019; T.K. Rajalakshmi, “Kashmir’s Development Statistics: Nailing a Lie”, The Hindu, Aug. 17, 2019.
[29] n.19
[30] Badri Raina, “Article 370” 48 Social Scientist 7/8 (July-August 2023).
Author: Syeda Midhat Fatima
Juris Centre 