The Unconstitutional Abrogation of Article 370

The Unconstitutional Abrogation of Article 370

Author: Nilesh Chopra,
3rd year, B.B.A.L.L.B,
Jindal Global Law School, 
O.P Jindal Global University.

Maharaja Hari Singh signed the ‘Instrument of Accession’[1] which was later instituted as Article 306A in the Constitution of India by the Constituent Assembly and was drafted by Sheikh Abdullah in 1949 which provided autonomy to Jammu and Kashmir. Later, on the 17th November 1952 the article became operative as Article 370 in the Indian Constitution and was labelled under Part XXI of the Constitution of India, i.e. “Temporary, Transitional and Special Provision”.[2]
On the 5th of August 2019, Article 370 was abrogated by a Presidential Order- The Constitution (Application to Jammu and Kashmir) Order, 2019.[3] The next day, i.e. on the 6th of August, the Parliament passed the Jammu and Kashmir Reorganization Bill, 2019. This bill will bifurcate the state into two union territories, leaving Ladakh without a legislature.[4]Additionally, the Legislative Assembly of Jammu and Kashmir was dissolved, and the President’s rule was declared.
There were a number of issues with respect to the abrogation of this article due to which numerous petitions were filed in the Hon’ble Supreme Court to prove it to be unconstitutional.
The main issues before the Hon’ble Supreme Court are:

Whether the Constitution (Application to Jammu and Kashmir) Order, 2019 passed violated article 370(3)?[5]

Jammu and Kashmir was under the President’s rule since June 2018 and all decisions pertaining to the state were taken by the executive and not an elected government. When the abrogation of article 370 was proposed in the Parliament, the recommendation/consent of the government of Jammu and Kashmir was not taken as there was no government due to the President’s rule. The will of the people of the state was not duly expressed by the Governor as he is not elected by the people directly. Article 370(3) makes in mandatory for the President to take the recommendation of the Assembly before abrogating the article. In this case, no recommendation of the Assembly was taken. Moreover, in the case of 
Mohammed Maqbool v. State of Jammu and Kashmir, the court held that the state of Jammu and Kashmir has the right to decide who will give consent on their behalf.[6] According to the Constitution of Jammu and Kashmir, an elected government should be representing the state and if there exists no such government, the Union should consult the citizens before making such a unprecedented move.[7] Therefore, the President has violated Article 370(3).

Whether the President had abused the emergency powers under the Constitution of India?[8]


    The President enjoys certain powers under article 356 of the Constitution of India. This article transfers the executive and legislative powers of a state to the President and Parliament, respectively.[9] The constituent power of a state is not transferrable through this article. The constituent power of Jammu and Kashmir is vested in the Government and not the Governor under Article 370(1)(d). Therefore, if a recommendation is not requested by the state, the Union cannot, unilaterally, take away the autonomy of a state, guaranteed under the Constitution itself making the abrogation unconstitutional.


    Whether the abrogation violated the basic feature of federalism of the Constitution of India?[10]


      ‘The Constitution of Jammu and Kashmir: Its Development and Comments’, a book by former Chief Justice of India, A.S Anand mentioned that “the temporary provisions does not mean that the article is capable of being abrogated and modified unilaterally”. [11]The act of abrogating article 370 has violated the basic feature of federalism of the Constitution. If article 370(1) is read with article 368, the State of Jammu and Kashmir is allowed to decide if the amendments made by the Indian Constitution shall apply to it or not.[12] Moreover, in R.C Poudyal v. Union of India, the court said that the states can have non-identical relations with the Union government as it depends on their accession and their social, political and cultural history. This implies that the Union cannot amend the relationship between states under Part XXI of the Constitution, arbitrarily, without consulting the State.[13]

      Whether the bill violated article 19 of the Constitution of India?[14]


        The abrogation of article 370 violated the freedom of press guaranteed by article 19(1)(a) of the Constitution of India. “In numerous case, the Hon’ble Supreme Court held that no authority can interfere with the content and circulation of newspapers, even in the name of public interest.”
        [15] In the case of Sakal Paper Ltd v. Union of India, the court held that the state cannot use indirect means to restrict the freedom of newspaper circulation and such an act was held unconstitutional. The court said that “the circulation of a newspaper is a part of the right to freedom of speech and expression which is of paramount importance under a democratic Constitution which envisages changes in the composition of Legislatures and Governments”.[16]

        Whether the Jammu and Kashmir Reorganization bill was introduced against the prescribed Parliamentary Procedure?

        The Jammu and Kashmir Reorganization Bill, 2019 which was passed on the 6th of the August 2019 was introduced in violation of the prescribed parliamentary procedure. Rule 33 of the Rules of Procedure and Conduct of Business in Rajya Sabha says that a special time must be allotted to deliberate upon newly introduced bills and these bills should be listed under the ‘List of Business’.[17] No special time was allotted to deliberate on the bill and it was placed under the ‘Supplementary List’ and not the ‘List of Business’. Therefore, it is clear that the bill was introduced with an intention of secrecy and haste.

        Conclusion
        The above case laws and arguments clearly prove that the abrogation of article was unconstitutional. The President has abused his powers under the Constitution of India. The political leaders of the state were kept under house arrest and were not approached before abrogating this article. This unprecedented decision has violated the pluralistic nature of the country and undermined the intentions of our Constitutional makers and therefore, should be held unconstitutional.



        CLICK HERE TO JOIN LAW COLUMN’S TELEGRAM AND WHATSAPP GROUPS

        [1]  Instrument of Accession 1947

        [2] The Constitution of India 1947, article 370

        [3] The Constitution (Application to Jammu and Kashmir) Order 2019

        [4] The Jammu and Kashmir Reorganization Bill 2019

        [5] Shehla Rashid, ‘Public Interest Litigation’ (Live Law, 28th August 2019), https://www.livelaw.in/top-stories/jk-sc-refers-petitions-challenging-abrogation-of-special-status-and-bifurcation-of-state-to-constitution-bench-147538

        [6] Mohammed Maqbool v. State of Jammu and Kashmir, [1972] 2 SCR 1014

        [7] The Constitution of Jammu and Kashmir 1956

        [8] Ibid

        [9] The Constitution of India 1950, article 356

        [10] Ibid

        [11] Adarsh S Anand, The Constitution of Jammu and Kashmir: Its Development &Comments, (8th edn, Universal Law Publishing, 2016)

        [12] Shehla Rashid, ‘Public Interest Litigation’ (Live Law, 28th August 2019), https://www.livelaw.in/top-stories/jk-sc-refers-petitions-challenging-abrogation-of-special-status-and-bifurcation-of-state-to-constitution-bench-147538

        [13] R.C Poudyal v. Union of India, [1983] AIR 1804

        [14] Anuradha Bhasin, ‘Public Interest Litigation’ (Live Law, 20th December 2019), https://www.google.com/amp/s/www.livelaw.in/amp/top-stories/shah-faesalsehla-rashid-moves-sc-challenging-abrogation-of-art370-bifurcation-of-state-147532

        [15] Anuradha Bhasin, ‘Public Interest Litigation’ (Live Law, 20th December 2019), https://www.google.com/amp/s/www.livelaw.in/amp/top-stories/shah-faesalsehla-rashid-moves-sc-challenging-abrogation-of-art370-bifurcation-of-state-14753

        [16] Sakal Papers v. Union of India, [1962] AIR 305

        [17] Rules of Procedure and Conduct of Business in Rajya Sabha 2016, rule 33
        See also  Factors and Considerations for Withdrawal from Prosecution

        Leave a Comment