The piece examines and explains the legal aspects surrounding the abrogation of Article 370 and the simultaneous wholesale application of the Constitution of India vis a vis Jammu and Kashmir. It teases out the rationale put forth by the Supreme Court in upholding the Centre’s actions, the knotty issues about the President’s power to effect such a drastic overhaul, and larger questions about constitutional accommodation and asymmetrical federalism.
The Supreme Court of India, in a unanimous judgement delivered on December 11, 2023, upheld the constitutionality of the wholesale application of the Constitution of India to the erstwhile state of Jammu & Kashmir as well as that of the abrogation of Article 370. The latter had effected a distinctive constitutional arrangement between the Union and the State, in recognition of its special status and autonomy.
This special arrangement was as follows: Besides limiting the Union Parliament’s legislative competence with respect to J&K, Article 370 qualified the applicability of the Indian Constitution to the State. Other than Articles 1 and 370, only those provisions of the Indian Constitution that the President specified, subject to exceptions or modifications, would apply to the State [Article 370(1)(d)]. The state government would have to be consulted if these orders related to matters specified in the Instrument of Accession signed between the newly independent Indian state and the last monarch of the princely state of Kashmir. It had transferred legislative competence to the Union only with regards to defence, external affairs, communications, and specified ancillary issues. For all other matters, its concurrence was necessary. Notably, Article 370(3) provided for its own repeal or amendment. The President could, by public notification, declare that Article 370 would cease to operate or would be operative subject to exceptions and modifications. However, the “recommendation of the Constituent Assembly of the State…[was] necessary before the President issue[d] such a notification.” [Article 370(3)]
In 2019, during the President’s Rule under Article 356 of the Indian Constitution, Constitutional Orders 272 and 273 were issued to erode the special status of J&K by a constitutional sleight of hand. In 2018, acting under Article 356, the President had assumed the functions of the J&K governor and the state government. The powers of the J&K legislature were also declared to be exercisable under the authority of the Union Parliament. This allowed the President to issue CO 272 under Article 370(1)(d), without having to seek the concurrence of the state government, whose powers he himself exercised. CO 272 applied all provisions of the Indian Constitution to J&K. It also amended Article 376(4) (a provision guiding the interpretation of the Indian Constitution) to specify that “Constituent Assembly” on the proviso to Article 370(3) would be substituted with “Legislative Assembly”. This was necessitated by the fact that Article 370(1)(d) gave the president the power to modify and extend “such of the other provisions” of the Indian Constitution, that were not Articles 1 and 370, which were directly applicable [Article 370(1)(c)]. A day later, based on the recommendation of the Union Parliament (functioning as the J&K legislative assembly), the President issued CO 273 Article 370(3) to abrogate Article 370.
This essay considers the reasoning employed by the Supreme Court in upholding the constitutionality of the abrogation of Article 370. Much ink has been spilt on the erosion of the autonomy of J&K in the years since Independence, through a slew of Presidential Orders that incrementally expanded the application of the Indian Constitution to J&K. Can the 2019 orders, abrogating the special constitutional relationship between the Indian Union and J&K then be understood simply as a culmination of a political project of constitutional integration, the seeds of which lay in the ‘temporary’ nature of Article 370? While it may well be true that the abrogation of Article 370 was not a drastic alteration of status quo, it must be acknowledged that the reasoning adopted by the court to endorse dubious means of effectuating constitutional change significantly undermines the principles of constitutionalism.
The Supreme Court’s Holding and Reasons
The crux of the court’s reasoning in upholding the constitutionality of CO 272 and CO 273 ⎯ except for the clause amending Article 376(4) ⎯ was that Article 370 was a temporary provision which had continued to remain in operation as the President had (until then) not exercised the power under sub-clause (3) to repeal or modify it. During the ‘transitional period’ when the J&K constitution was being framed, the Constituent Assembly was empowered to make a ‘non-binding’ recommendation to repeal or modify Article 370. However, since the dissolution of the J&K Constituent Assembly, the power had become one that the President could unilaterally exercise.
Therefore, according to the court, the application of all provisions of the Indian Constitution to J&K was valid because:
- CO 272 was issued under Article 370(1)(d), whereunder not just piecemeal but wholesale application of the Indian Constitution to J&K was permissible.
- The President, acting under the authority of Article 356, could not have sought his own concurrence under Article 370(1)(d), as that would defeat the purpose of the condition, i.e., “collaboration between the federal units and representative democracy”.
- However, it was no impediment that the President sought his own concurrence, as the effect of a wholesale extension of the Indian Constitution to J&K was the same as that of a declaration made under Article 370(3) that Article 370 shall cease to exist and such a declaration could be unilaterally made by the President.
In addition, the abrogation of the special status of J&K by CO 273, issued under Article 370(3), was also valid:
- While the amendment to Article 367(4), replacing “Constituent Assembly” of J&K with “Legislative Assembly” was ultra vires, because an interpretation clause could not be used to amend Article 370(3), the aid of such an amendment was not needed.
- The presidential power to abrogate Article 370 was unilateral, and the effect of a presidential notification under Article 370(3) had already been achieved by CO 272, which was constitutionally valid.
Thus, while the petitioners had argued that it was beyond the power of the Union to do indirectly, that which it could not do directly, the Supreme Court effectively implied that the Union need not have gone to the trouble of doing indirectly that which it could do directly. Consequently, the concurrent challenges to the colourable proclamation of President’s Rule under Article 356 and the subsequent exercise of presidential powers to irreversibly alter the special status of J&K were rendered moot.
The President’s Unilateral Power to Abrogate Article 370: A Spurious Conclusion?
In order to buttress the above conclusions (on which all 5 judges were united), the court held that first, Article 370 was intended to be a temporary provision; second, the recommendation of the J&K Constituent Assembly was never intended to be binding; and that finally, a holding that the power under Article 370(3) was not capable of being exercised after the dissolution of the J&K Constituent Assembly would result in ‘freezing’ the process of constitutional integration between J&K and the Union, contrary to the purpose of Article 370. Those who have commented on the judgement have shown that this line of reasoning not only misinterprets the text of Article 370 but also misrepresents the history and purpose of its inclusion in the Indian Constitution (see here and here). It would be useful to briefly canvas these arguments here.
First, in holding that Article 370 was a temporary provision, the court ignored the plain meaning of the constitutional text. It observed that Article 370 was meant to be temporary due to its placement in Part XXI of the Indian Constitution, titled ‘Temporary and Transitional Provisions’, among other provisions whose operation was intended to expire at a specified time or on the occurrence of a specified event. Additionally, Article 370’s marginal note read: “temporary provisions with respect to the State of Jammu and Kashmir”. The drafters’ clear intention to therefore put in place a temporary arrangement meant that the ‘constitutional integration’ of J&K with the Indian Union could not be ‘frozen’. This, however, does not reckon with the plain meaning of the text of Article 370(3) which makes the recommendation from the Constituent Assembly ‘necessary’ for a notification to be issued by the President regarding the exercise of Article 370(3), implying a condition precedent.
Next, the court held that the phrase ‘recommendation of the Constituent Assembly’ indicated the non-binding nature thereof. This led to it drawing a misplaced parallel between Article 370(3) and the informal ratification of the Indian Constitution by other princely states, which were given an opportunity to suggest modifications in its application to them, as a ‘measure of goodwill’. This ignores the history of Article 370’s inclusion in the Constitution as a sui generis provision to provide for a temporary federal arrangement pending the settlement of the exact contours of the constitutional relationship between the Union and the State by a Constituent Assembly set up to draft the J&K Constitution.
Finally, the court’s argument that the purpose of Article 370 was ‘constitutional integration’ between the Union and J&K is also misleading. The judgement did acknowledge that there were unique considerations that set apart J&K from other states. At para 278, it observed:
“Article 370 was introduced to serve two purposes. First, an interim arrangement until the Constituent Assembly of the State was formed and could take a decision on the legislative competence of the Union on matters other than the ones stipulated in the IoA, and ratify the Constitution (the transitional purpose); and second, an interim arrangement because of the special circumstances in the State because of the war conditions of the State (the temporary purpose).”
However, the judgement gave short shrift to another reason necessitating the interim arrangement, that is, the Government of India’s promise to the people of J&K that they (and not the drafters of the Indian Constitution) would “determine the constitution of as well as the sphere of the Union jurisdiction over the State.” (Constituent Assembly Debates, Volume X (17 October 1949), Gopalaswamy Ayyangar). The requirement of the J&K Constituent Assembly’s recommendation before repealing or modifying Article 370 was therefore an expression of the people’s constituent power. This was largely written out of the story by the court. Instead, the emphasis was on the fact that Article 370 was hoped to be an interim arrangement till full integration in line with other States became possible, even though the text itself contemplated the possibility that the J&K Constituent Assembly might not recommend the abrogation of Article 370.
Constitutional Accommodation, Asymmetric Federalism, and Incrementalism
Does it matter that the drafters of the Indian Constitution had hoped that Article 370 would be temporary? I argue that interpreting Article 370 in a manner that nullifies its plain meaning to give effect to what the drafters had intended is improper given that Article 370’s text accommodated all eventualities, i.e., its abrogation, modification, or retention.
Article 370 was a form of constitutional accommodation, achieved through asymmetric federalism, necessitated by the realities of constitution-making in pluralist societies. Constitution-making in pluralist societies poses a dilemma, i.e., a tension between the unity of the nation-state and the stability of the constitutional arrangement. Khaitan articulates it as follows: “while the usual aspiration is to write a constitution that engenders consensus over its contents, its potential endurance itself signals the permanent loss for groups who may have lost out in the constitutional negotiation, encouraging their intransigence.” The aim of constitutional accommodation is therefore to provide a structure within which interactions between groups can continue to occur and develop, rather than closing off, permanently, the possibility of minority groups achieving some part of their agenda. Constitutional accommodation includes a wide range of constitutional design strategies, including federal power-sharing arrangements, that seek to provide minority groups with political insurance or security, such that the constitution can perform its integrative function, i.e., containing and regulating disagreement within the state (Barber) in the short and long-term (Malagodi). In the short-term, the aim is to moderate disagreement at the time of adopting the constitutional text, such that all groups can unite behind the constitution, and negotiations are successful. The long-term goal is to ensure the stability and durability of the constitution by providing mechanisms that keep disagreement within the boundaries of the constitution, so that minority groups do not seek to achieve their political ends outside of state institutions.
Among various possible approaches towards constitutional accommodation, incrementalism is one form. Incrementalist design strategies reject the familiar picture of a revolutionary constitution-making moment in favour of an open-ended approach, allowing for future adaptations and gradual resolution of potentially explosive foundational questions. They entail the transfer of problems from the constitutional to the political sphere through the use of tools of constitution-making that include “avoiding clear-cut decisions, using ambiguous legal language, and inserting internally contradictory provisions into the constitution.” Lerner developed her theory of incrementalism in deeply divided societies where ‘ideational polarization’ over competing visions of the state results in a lack of consensus on constitutional arrangements. However, in my opinion, incrementalism can also explain how disagreements over institutional matters (such as union-state relations), which emerge from ideological conflicts (like assimilation versus accommodation) are managed at the time of constitution-making.
The arrangement under Article 370 was also an instance of incremental constitution-making, whereby the drafters failed to make clear-cut decisions about the exact scope and duration of J&K’s autonomy. In fact, Article 370’s ambiguous language led to considerable legal controversy over whether the regime of presidential orders could coexist alongside the state’s law-making powers under the J&K Constitution after the dissolution of the J&K Constituent Assembly. This was ultimately resolved by the Supreme Court in the affirmative, thereby eroding some of the asymmetry under Article 370 (see Sampat Prakash v State of J&K). Thus, Bhatia has argued that “history of asymmetric federalism in India is a history of contestation: a history where constitutional silences and ambiguities were resolved by the Supreme Court to entrench a centralising drift, which – in turn – fed on, and was fed by – a political reality of diminished effective autonomy enjoyed by the state of Jammu and Kashmir.” According to Lerner, this is exactly how incremental constitutional-making plays out, with the controversies relating to the nature of the state being resolved gradually through the vehicle of politics.
Does it then mean that the abrogation of Article 370 and the Supreme Court’s endorsement thereof is just a culmination of the political process at work over decades? The simple answer is, yes and no. It may be true that the special status of J&K under the Indian Constitution was not a case of a principled recognition of its distinct nationhood but a pragmatic response to the particular circumstances of the State at the time of constitution-making (Tillin, Bhatia). In fact, the reluctance of the drafters to take a strong principled position in this regard allowed the Supreme Court to permit J&K’s gradual ‘constitutional integration’ with the Indian Union through a slew of presidential orders passed with the concurrence of collusive state governments in J&K. In observing therefore that the constitutional relationship between the state and the union was not frozen in time, the Supreme Court was arguably not wrong.
Where the court went wrong was in endorsing the unilateral abrogation of Article 370 by nullifying the text of the Indian Constitution. The very essence of constitutionalism is a normative commitment to the supremacy of the Constitution, i.e., the idea that governmental power is derived from, regulated by, and exercised in keeping with constitutional requirements. It was therefore incumbent on the Union Government to respect, and the court to enforce, the mechanism through which the special status of J&K could be constitutionally modified.
Respect for the special arrangement under Article 370 therefore flows from a normative commitment to constitutionalism and not a normative commitment to J&K’s autonomy. The pragmatism of Article 370 does not render the constitutional accommodation of Kashmir’s autonomy completely dispensable. Even the staunchest originalists would disavow such an approach. At the same time, this does not mean that the autonomy of J&K is necessarily permanent or that Article 370 is unamendable. An amendment under the normal amendment procedure under Article 368 of the Indian Constitution, the reconvening of the J&K constituent assembly, or investing the J&K legislative assembly with similar functions, etc. were all unexplored possibilities that were arguably more in keeping with the language and purpose of Article 370.
The demands of constitutionalism impose certain constraints on the exercise of state power. At the very least, when the Constitution provides for a mechanism for the amendment of a provision, the same cannot be replaced with a transmogrification that is neither faithful to the constitutional text nor its purpose.
Adrija Ghosh is a lawyer, currently pursuing a DPhil in Law at the University of Oxford.
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