Revisiting Article 370: Why India’s Supreme Court must undo the Modi govt’s move to usurp Kashmiris’ rights

The fateful orders of August 5, 2019, are a blot on the constitution, which threaten to destroy the basic structure of the union of India.
Published July 11, 2023

The Supreme Court of India (SCI) is set to hear today a batch of nearly 23 petitions challenging the Modi government’s decision to abrogate Article 370 of the Constitution, which had given special status to Indian-occupied Jammu and Kashmir.

The petitions, to be taken up by a five-judge bench headed by Chief Justice of India DY Chandrachud, will be heard almost four years after the Indian government reconstituted the state of Jammu and Kashmir into the two ‘union territories’ of J&K and Ladakh in August 2019.

With this act, the Indian government unilaterally stripped Kashmiris of the special autonomy they had enjoyed for seven decades through a rushed presidential order.

A leaf from history

Though the SCI has delivered several judgements relating to Article 370, two leading cases — Prem Nath Koul vs State of Jammu & Kashmir (1959 SCJ 797) and Sampat Parkash vs State of J&K ( AIR-1970 1118) — each heard by five member constitution benches, have extensively deliberated the law and accorded permanency to it.

As per practice and the procedure of the SCI, it would require a larger bench to overrule the earlier views of the five judges benches. If, prima facie, the SCI feels that the earlier views require review, the number of judges hearing the current petitions would have to be increased.

Moreover, the present bunch of cases involves extraordinary points requiring an in-depth exploration of the constitutional history, relating to the accession of the ruler with the union, compared to that undertaken in the earlier cases.

In exploring the constitutional history, the court will have to ensure it brings on record and examines the following documents and anecdotes from history:

  • Indian Independence Act 1947;
  • The Government of India Act, 1935, as adopted on August 15, 1947, by India;
  • Letter of the Maharaja of the state to the Governor-General of India dated Oct 26, accompanied by the instrument of accession and its response by the Governor-General dated Oct 27, 1947;
  • Parliamentary debates on Article 306 (re-numbered as Article 370);
  • Speeches of former prime minister Jawaharlal Nehru and former president Ramaswamy Venkataraman inside parliament and outside;
  • Speech of former J&K prime minister Sheikh Muhammad Abdullah in its constituent assembly;
  • Various provisions of the Indian and J&K constitution, besides an honest appraisal of the circumstances that lead to militancy and the collapse of democratic institutions in Kashmir

For that matter, the court also cannot ignore the overall circumstances and environment which created a dispute between India and Pakistan, landing the subcontinent into trouble.

Promises, promises

At the time of Independence, the Maharaja of the Jammu and Kashmir, Hari Singh, was the only ruler out of all the princely states, who faced a people’s movement for self-rule. He alone, to his credit, negotiated the terms and conditions of accession with the union of India, that too against the ground realities. In doing so, the Maharaja was lucky enough to gain the support of his arch-rival, Sheikh Muhammad Abdullah, to support his decision of accession to India against the latter’s own constituency.

Maharaja Hari Singh managed the Delhi agreement of 1952 (signed by Sheikh Abdullah on behalf of government of J&K) between two popular governments of Delhi and Srinagar. Thus, the official record of the state, the ruler and the political leader’s statements cannot be brushed aside.

At the same time, looking from a broader perspective, the court cannot lose sight of the fact that 45 per cent of the land mass of the state, with over 1.3 million state subjects in AJK, GB, as well as those settled out of state, equally await the day to decide their destiny in accordance with the Independence Act 1947, the Government of India Act 1935, the Governor-General of India’s conditional acceptance of the instrument of accession, as well commitments of Indian leaders and the UN resolutions.

It can also not ignore the fact that the people of the parts of the state administered by Pakistan (on which India also asserts its claim) had resolved through a declaration by its government on Oct 24, 1947, (much before the ruler of the state had conditionally acceded to India), requesting the governments of India and Pakistan to help them decide their fate through a free and fair plebiscite. Article 257 of the Constitution of Pakistan pledges its support for the resolution.

A similar pledge was given by the Governor-General of India on Oct 27, 1947, in his letter to the Maharaja, which reads: “… as soon as law and order have been restored in Kashmir and her soil cleared of the invaders, the question of state’s accession should be settled by reference to the people …” This was endorsed by Mahatma Ghandhi and Jawaharlal Nehru as well as other stalwarts of the Indian freedom movement.

The same pledge was also endorsed by the United Nations Commission for India and Pakistan (UNCIP) through its resolution on Jan 5, 1949, after India had itself moved the UN Security Council on Jan 1, 1948. The Simla agreement of 1972 equally endorses the spirit of all of the above.

The Government of India is bound under Article 51 of its constitution “ … to foster respect for international law and treaty obligations“ and Article 253 “… for implementing any treaty, agreement or convention … made at any international conference, association or other body”.

The conditional accession by the Maharaja and its acceptance by the governor-general, irrespective of its legitimacy and propriety, was accorded approval by the union of India in the spirit of Article 2 of its constitution ‘subject to terms and conditions’ proposed by the ruler, guaranteed by Article 370.

The court cannot also ignore the contents of Articles 371-A to 371-I of the constitution, relating to other Indian states and union territories that enjoy the special status with almost similar rights (some even more). Although the latter had unconditionally acceded to India, they were given the guarantees due to their ground realities.

There is nothing novel in Article 370 that does not find a place in the above-mentioned special articles. But they are sacred because they are not for Jammu & Kashmir.

The fateful orders of August 5, 2019, are a blot on the constitution, which threaten to destroy the basic structure of the union of India. Through the presidential order, the state assembly was dissolved, the state was placed under union bureaucracy, controlled by around a million soldiers under union rule.

An employee of the union government is governing the state as its governor, who has to be construed and read under the presidential order as the ‘government’ and ‘Sadr-e-Riasat’. The legislative assembly is to be construed as the constituent assembly. In other words, the union is consulted by the union and consented by the union.

Interpreting the law

Article 370 is a condensed constitution in itself with its own mechanism of legislative process without the need for intervention from parliament. The terminology used in it is self-explanatory and does not leave room for any ambiguity.

The unequivocal words used in Article 370 cannot be subjected to subjective and whimsical interpretations, added through Article 367 of the constitution to give leverage to executive interpretations over the judicial power of interpretation.

Interpretation involves understanding, explaining and applying the meaning of laws, texts, or other sources of information that may be susceptible to different meanings.

It is an essential aspect of legal process, which is the prerogative of courts, legal professionals, jurists and scholars of relevant fields, who apply and interpret the law, and not the legislature or executive that only provide the foundations of law. Its application may vary from time to time with the change of facts, circumstances or environment.

Through its actions in August 2019, the Government of India has preempted the authority of its supreme court.

The words used in Article 370 are very clear. They mean what they say. Even if any ambiguity arises or there are mitigating circumstances that necessitated the Article have changed, the Article can be interpreted to meet the eventuality, but it cannot be made redundant by any branch of the state.

Interpretation reflects the mind of framers of the constitution or law, as well as the circumstances under which it was framed. Its intents and meanings can be ascertained from India’s library records as well as the constituent assembly’s debates (India as well as Kashmir), if the court finds any ambiguity.

The final word on interpretation of the constitution and law rests with the Supreme Court of India, not with the Indian government or parliament to say what a particular Article, clause or any word used therein means or to be construed as was done through the order on August 5, 2019.

Header image: A demonstration against the Modi government’s move to abolish Article 370 outside the Indian embassy in London in 2019. — Abdul Shakoor/ Shutterstock