The Virtual Abrogation of Article 370

I M Sharma

The Bharatiya Janata Party (BJP) “used” the 2019 Pulwama terror attack and the consequent air strike at Balakot in the neighbouring country to win the Lok Sabha polls that year, former Tripura Chief Minister Manik Sarkar claimed [The Hindu, 23 April, 2023]. He made the claim days after former Governor of Jammu and Kashmir, Satya Pal Malik, alleged that the Pulwama terror attack was a result of “systemic failure, involving gross security and intelligence lapses”. And then after once again winning the elections and coming to power, the BJP this time made no further delay but brought four bills before the Parliament for the virtual abrogation of Article 370 and the related matters. In this process, not only the special status and safeguards given to the State of Jammu and Kashmir were abruptly removed but even the State’s status as one of the States in the Union was done away with; it was divided into two Union Territories of Jammu and Kashmir, and Ladakh (at first they contemplated 3 UTs, wanted to make Jammu even into a separate Union Territory!). According to a press release by the Press Information Bureau Home Minister Amit Shah introduced two bills and two resolutions regarding Jammu and Kashmir in Lok Sabha thereby in effect extinguishing the special status enjoyed by the State of Jammu and Kashmir due to the provision of Article 370 as also due to the Constitution of Jammu and Kashmir framed by its Constituent Assembly and enforced by lawful processes till now, and dividing the State into 2 Union territories. Those Order, resolution and bills are:

1. Constitution (Application to Jammu & Kashmir) Order, 2019 {Ref. Article 370(1) of Constitution of India}–issued by President of India to supersede the 1954 order related to Article 370; (2) Resolution for Repeal of Article 370 of the Constitution of India {Ref. Article 370 (3)} (this to enable the passing of the CO 272 at 1) above; and (3) Jammu & Kashmir (Reorganisation) Bill, 2019 {Ref. Article 3 of Constitution of India}–dividing the State into two Union Territories of Jammu and Kashmir and Ladakh.

2. Soon after passing the Bill to divide the State into two UTs or one may say simultaneously, a notification CO 273 was also made notifying the residual Article 370 in the Constitution after its special status provisions were removed and all provisions of the Constitution made applicable. The Bill to divide Jammu and Kashmir into two Union Territories having been passed, and almost immediately presidential assent also given, it has become the Jammu and Kashmir (Reorganisation) Act, 2019 of which the Sections 3 and 4, as also 5 are extracted hereunder:

Reorganisation of the State of Jammu and Kashmir
3. Formation of Union territory of Ladakh without Legislature : On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Ladakh comprising the following territories of the existing State of Jammu and Kashmir, namely: “Kargil and Leh districts”, and thereupon the said territories shall cease to form part of the existing State of Jammu and Kashmir.

4. Formation of Union territory of Jammu and Kashmir with Legislature : On and from the appointed day, there shall be formed a new Union territory to be known as the Union territory of Jammu and Kashmir comprising the territories of the existing State of Jammu and Kashmir other than those specified in section 3.

5. Governor of existing State of Jammu and Kashmir to be common Lieutenant Governor : On and from the appointed day, the Governor of the existing State of Jammu and Kashmir shall be the Lieutenant Governor for the Union territory of Jammu and Kashmir, and Union territory of Ladakh for such period as may be determined by the President.”

It is to be noted that despite the solid support of the BJP and other NDA members of Parliament, voting for this bill, it seems even some members of other parties including the Congress Party were also in favour of this reorganisation and so the bill was passed easily both in the Lok Sabha and the Rajya Sabha and in no time after received presidential assent and became an Act in all respects.

Naturally the disaffected parties challenged this Act and related developments by writ petitions in the Supreme Court as unconstitutional and unjust and after considering all that batch of writ petitions a 5-Judge Constitution Bench of the Supreme Court headed by the Chief Justice of India, Justice A V Chandrachud, has put its stamp of approval on it on 11 December 2023, mainly on the ground or pretext that there is provision in Article 370 itself to make necessary changes through a presidential order, so no other constitutional amendment procedure is necessary or warranted, earlier also about five presidential orders were made taking recourse to subsection (3) of Article 370 bringing in some important changes in Article 370, as such there is no mistake in the procedure followed and the Parliament had all the powers to alter the text of Article 370 by taking recourse to the internal amending power bestowed by 370(3) and, as such, the CO 272 and CO 273 as also the Jammu and Kashmir (Reorganization) Act, 2019 were quite legal and valid. The SC also made a queer observation that perhaps a future government could restore the status quo ante by taking recourse to the same 370(3) and that will also be quite in order. As to the question whether a State could be divided into 2 Union Territories per the Constitution, the Court evaded it saying since the Attorney General / Solicitor General assured that soon an amendment would be brought making the Union Territory of Jammu and Kashmir into a State, they were satisfied with that but suggested that elections to the Assembly of the UT of J&K be held at the earliest as promised by the Union Government.

This writer thinks the Court could and should have set aside the Act and related Orders on the sole ground that it is not permissible under the Constitution to divide a State into Union Territories which is not contemplated anywhere in the Constitutional provisions. Article 3 of the Constitution gives power to the Parliament to make a law to create a new State out of the existing States and Union Territories or divide a State into two or more States or States and Union Territories but not to create all Union Territories out of a State – that is abrogate the entity of a State altogether. For example, Andhra Pradesh could be divided into two States of Andhra Pradesh and Telangana, or if so desired into two States and a Union Territory (as a demand for making Hyderabad into a Union Territory is long subsisting) but not into 2-3 Union Territories. That will be obliterating the status of the State totally. Also, until now nowhere in India a State has been converted into Union Territories though in general there was a process of elevation or conversion of Union Territories into States (for example, Goa, Puducherry, etc.) has been going on. The tacit and silent approval of the Apex Court to this mischief of the Parliament and Union Government would mean that in effect the Constitution has been trashed, the very basic structure of India and its constitution has been undermined, and henceforth any State in India can easily be divided into as many parts as the ruling party having Parliamentary majority desires; and Article 1 of the Constitution which says: “1. India, that is Bharat, shall be a Union of States...” will, in effect, mean India, that is Bharat, shall be a Union of States, which can be obliterated at will by the Union!

The Instrument of Accession and the special provisions made in Article 370 to respect the promises made in the wake of the acceptance of that Instrument cannot be trashed as they like by any Government. Moreover there is no reference in this judgement at all to the international situation and United Nations resolutions in this regard, and the undertaking of both the Governments of India and Pakistan to conduct a plebiscite in entire J & K to ascertain the will of the masses and decide on its accession to India or Pakistan; and the international reproach the Government of India has been receiving all along for trashing this obligation of conducting plebiscite which is aggravated by the current abrogation of the internal autonomy of the State granted by the unamended Article 370 is also not taken notice of by the SC. Here also the SC seems to have been swayed by a sort of national chauvinism and the bland declarations of the BJP Government that no referendum is necessary for the State of Jammu and Kashmir which is an integral part of India and the only need is to recover the PoK from Pakistan by any means possible; but the BJP Government is just shouting aloud, without, however withdrawing the complaint filed by India to the UN which gave rise to the still surviving, and the-burning-like “the pyre of Ravanasura (Ravanasura KaashTam)” India-Pakistan Dispute in the United Nations. Anyway the UN will not allow the India-Pakistan Question to abate by any withdrawal since it has become wider in scope and depth with Pakistan raising the Junagadh and other issues also and attaching those to the (Indian) original complaint. Then, there is a lot of ire regarding such reckless attitude of the Government of India among the majority members of the United Nations which can result in the eventual sending of UN Peacekeeping Forces to Jammu and Kashmir and holding of the plebiscite under UN auspices resulting in the possible loss of entire J & K even, just in case Russia doesn’t exercise its Veto powers in India’s favour this time for any reason, etc. All these points and developments have not been even vaguely considered by the Court, possibly on the ground that they do not fall for any consideration in the cases concerned but the national and international complicated situations cannot justify or condone such evasion.

Also, a Division Bench of the Jammu and Kashmir High Court has declared in 2015 that Article 370 cannot be abrogated; it has attained permanent features, and asserted that “It is beyond amendment, repeal or abrogation, in as much as the Constituent Assembly of the state before its dissolution did not recommend its amendment or repeal”. The Supreme Court and High Court of Azad Kashmir (what Indians call PoK) are completely independent of the Supreme Court of Pakistan, which seems to have no control or supervision over them. But the Division Bench judgement of the Jammu and Kashmir, which was later approved by a division bench of the Supreme Court too, was just relegated into oblivion or trash-can by the Constitution Bench of the Supreme Court in their December Judgment.

Further, it is very strange that the Apex Court should declare Jammu and Kashmir Constitution as ‘redundant’–a waste paper to be trashed into the dustbin of history. If this is the fate of (and approved by the highest court in India) the only State Constitution in India and that of that State itself dismembered into two Union Territories against all constitutional precedents and practices, then one can easily surmise the fate of the other States in India which do not have or never had this privilege. India, that is Bharat, is a Union of States–really of States that can be dismembered and obliterated at will by the Union and more important of a Union of States that can turn into a Union of Union Territories at the will of capricious and dictatorial rulers, and the very obliging judiciary.

Pakistan had strongly protested against the abrogation of Article 370 more so for its doing away with the internal autonomy of that State as the fate of accession of that State has to be decided, as per U N Security Council resolutions, by a plebiscite conducted by the Kashmiri permanent residents, as existed at the time of the partition of the country and the emergence of Azad Kashmir, and that is at stake due to this authoritarian measure.

Post-2019 Developments
Innumerable individuals, associations and parties/groups in India have protested against this arbitrary and despotic measure to virtually abrogate the Article 370 and make it just a remnant waste article with all special status and safeguards given to the internationally disputed Indian controlled part of Jammu and Kashmir, called IHK (India-Held-Kashmir). A protest letter written to PM Modi by 69 organisations and prominent persons from all over the world in which it has been, inter alia, stated: “The state’s unilateral repeal of the special status of Jammu & Kashmir, the reconfiguration of the State of Jammu & Kashmir, and the process through which these legislative changes were imposed in the midst of a complete lock-down of the region, are egregious. These actions violate the people of Jammu & Kashmir’s fundamental right to self-determination under international law and their right to participate in crucial decisions that affect their lives. Further, these actions have sent shock waves of fear and uncertainty among the people of Jammu & Kashmir and contravene both domestic and international law.” [69 human rights activists and organisations sign letter to Prime Minister Modi on situation in Jammu & Kashmir (https://www.fidh.org/)] And then there was a protest from International Commission of Jurists too: “The Indian Government’s revocation of the autonomy and special status of Jammu and Kashmir violates the rights of representation and participation guaranteed to the people of Jammu and Kashmir under the Indian Constitution and in international law and is a blow to the rule of law and human rights in the state and in India” the International Commission of Jurists (ICJ) said. [6 August 2019]. And so on. All these protests and representations wanted the Government of India to withdraw the virtual abrogation of Article 370 and restore the status quo ante.

There was much boasting in the initial months after this virtual abrogation of Article 370 COs and bills were passed that it was now alone that Jammu and Kashmir was returning to normalcy, that there has not been any terrorist outburst since Article 370 has been repealed and the number of tourists to Kashmir from rest of India and different parts of the world has increased by leaps and bounds and all this is bringing unforeseen prosperity and prominence to this State now. But soon all such boasting began to evaporate when the terrorism/insurgency has again revived with increased ferocity in the last few months and then when Parliamentary Elections were recently held in this divided State of Jammu and Kashmir–i.e. in the Union Territories of Jammu & Kashmir, and Ladakh, it transpired that the ruling party–the Bharatiya Janata Party (BJP)–was not even prepared to contest from Kashmir valley and left the field open to the contestants of the National Conference led by Omar Abdullah and People’s Democratic Party (PDP) led by Mehbooba Mufti and to other parties/independents. Strangely both National Conference and People’s Democratic Party suffered reverses with Omar Abdulla from National Conference being trounced by an independent Abdul Rashid Sheikh (Engineer Rashid) by big margin in Baramulla and the PDP Chief Mehbooba Mufti being defeated by a big margin in Anantnag-Rajouri by a National Conference candidate. Out of the 5 parliamentary seats in the Jammu and Kashmir Union Territory, the Bharatiya Janata Party (BJP) won 2 seats, both from Jammu and National Conference 2 (from Kashmir valley) and one independent from Baramulla, giving a jolt to the National Conference leader Omar Abdulla there. This election results to parliamentary constituencies in the Kashmir Valley demonstrates the discontent spread among the masses against the ruling parties of the centre or the state and the virtual elimination of the People’s Democratic Party (PDP) of Mehbooba Mufti, which was so prominent in Kashmir politics in recent decades. It is also to be noted that entire Jammu & Kashmir was placed under a kind of undeclared emergency from 2019 onwards, and no elections to the Legislative Assembly have been conducted there after 2014, when the BJP-PDP coalition gained majority and formed a coalition government in the then [un-bifurcated] State.

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Vol 57, No. 15 - 18, Oct 5 - Nov 2, 2024