Article 370 in Supreme Court: Will Kashmir’s special status be restored?

The ruling, anticipated around November-December, will be a critical moment in India’s constitutional history.

The Supreme Court on September 5, the last day of the hearings on Article 370. | Photo Credit: SHIV KUMAR PUSHPAKAR

After intense deliberations spanning 16 hearings from August 2 to September 5 that saw some of India’s best legal minds debate whether or not Article 370, which accorded Jammu and Kashmir a special status, was a permanent feature of the Constitution, the Supreme Court has reserved its judgment on petitions challenging its revocation.

What distinguishes the case of Article 370, apart from its imprint on India’s national narrative and the interest it generated in global human rights watchdogs—culminating in a high-decibel US congressional hearing in October 2019—is a series of knotty legal questions that lack definition and can lead to conflicting interpretations on the basis of one’s understanding of and commitment to federalism, federal autonomy, and the degree of salience of the people’s will in legislative prerogatives of the state.

The chief questions that the court has to decide on are as follows. Did Article 370 assume a permanent character after the Jammu and Kashmir Constituent Assembly was dissolved in 1957 soon after the framing of the erstwhile State’s Constitution? Was it legally justifiable and within the democratic spirit and federal framework to abrogate Article 370 by a presidential proclamation at a time the erstwhile State was under President’s Rule? By not referring to the will of the people of Jammu and Kashmir, did the government violate their fundamental right of equal treatment before the law as enshrined under Article 14 of the Constitution? Are Governor, State Legislature, and the Constituent Assembly all interchangeable institutions as counsel for the government and some of the other parties opposing the petitions have implied in their arguments?

Significance of verdict

Given Kashmir’s import in Indian politics, particularly in electoral politics where the ruling BJP uses the Kashmir discourse to augment its own positions on national security and national pride, the apex court ruling, which some quarters expect around November-December, is keenly awaited.

But in Srinagar, few are ready to bet that the court will reverse the clock. Frontline’s interactions with several political leaders in the Union Territory indicated a degree of pessimism, though they agreed that the hearings gave both parties full opportunity to build their case.

A well-known mainstream leader in Srinagar said: “There is little enthusiasm. The court may give us some succour in terms of restoration of statehood, but as far as restoring Article 370 is concerned, people are ‘realistic’ about it.” Asked about the ramification of an adverse Supreme Court judgment, the leader said that “it is not a question of today, but how it plays out tomorrow”, hinting that alienation is deep-rooted and might lead to violent eruptions as the current restrictive environment in Kashmir cannot hold permanently.

Srinagar on August 5, 2023, the fourth anniversary of the revocation of Article 370.   | Photo Credit: NISSAR AHMAD

On the other hand, if the court were to restore the pre-August 5, 2019, status of Jammu and Kashmir, it would be a huge setback to the BJP’s experimentations there. The bureaucracy in the Union Territory under Lieutenant Governor Manoj Sinha has tightened its hold on all aspects of governance while restricting civil society platforms from mobilising any kind of opinion against the government. It will also embarrass the Narendra Modi government in the international arena, where its policies on Kashmir have largely been seen as laden with the Hindu majoritarian agenda.

However, some political observers believe that a negative verdict for the Modi government would help the BJP relaunch its “Hindu victim” narrative ahead of next year’s general election, strengthen its commitment to prioritising the social and political hegemony of Hindus, and direct public sentiment to vote on this basis. It is generally agreed that an overwhelming number of people back Modi’s moves on Kashmir, in particular on the question of Article 370. This has led opposition parties, including the Congress, to shed their initial combative rhetoric on the issue. On August 5, 2019, New Delhi ended the semi-autonomous status of Jammu and Kashmir and opened its land and jobs to everyone in India, albeit with restrictions.

Highlights

• After an exhaustive series of 16 hearings, India’s Supreme Court has reserved its judgment on the contentious issue of Article 370, which granted special status to Jammu and Kashmir.
• The case, marked by intricate legal questions and political significance, hinges on whether Article 370 assumed permanence, the validity of its abrogation during President’s Rule, and its impact on democratic principles.
• The apex court’s verdict on Article 370 could reshape India’s political landscape, affecting electoral dynamics, governance, and international perceptions.

Article 370: permanent or temporary?

Four years later, on August 2, 2023, the Supreme Court under the aegis of Chief Justice D.Y. Chandrachud, began hearings on pleas challenging the scrapping of the special status, a move that was accompanied by a complete clampdown on the Kashmir valley, summary incarceration of its key political and civil society leaders, and the world’s longest Internet shutdown spanning 174 days from August 5, 2019, to January 25, 2020. Besides Chief Justice Chandrachud, the division bench comprises Justices S.K. Kaul, Sanjeev Khanna, B.R. Gavai, and Surya Kant.

As the hearings progressed, the petitioners, who were represented by legal luminaries such as Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Dushyant Dave, and Gopal Sankaranarayanan, premised their case on the “permanence” of Article 370. They pointed out that the Jammu and Kashmir Constitution was framed by the Jammu and Kashmir Constituent Assembly, indicating the Article’s permanent nature. Sibal described the Article as a “compact” entered into by two sovereigns (the then princely state of Jammu and Kashmir and the Government of India) and engrafted in the Constitution.

Senior Advocate Kapil Sibal arguing the case against the revocation of Article 370 in the Supreme Court on August 31. | Photo Credit: ANI

“Unlike the case in some other princely states, the Indian Government did not take over Jammu and Kashmir…. You [Government] want to take over J&K, you could have done it as a political act, but how do you do it from within a constitutional structure?” Sibal asked. Along with Dave and Subramanium, Sibal stressed that there was not any valid way to abrogate Article 370. The Article stated that the Jammu and Kashmir Constituent Assembly’s concurrence was needed to amend it and that “door was shut” with its dissolution in 1957, they said.

The proviso to Article 370(3) required the President to seek the recommendation of the Constituent Assembly before striking it down. The government, in order to effect the abrogation, inserted Article 367(4)(d), which replaced the expression “Constituent Assembly of the State” with “Legislative Assembly of the State” in the proviso to Article 370(3). A debate on whether the two institutions could be used interchangeably has since baffled and divided the legal fraternity. It has also created a sense of alarm among political leaders about the far-reaching consequences such an interpretation can have on India’s parliamentary system.

M.Y. Tarigami, spokesperson of the Peoples Alliance for Gupkar Declaration (PAGD), an amalgam of several mainstream Kashmiri parties, told Frontline that any attempt to erode the distinct identities of various institutions could crumble the country’s democratic edifice. “How can the Constituent Assembly of Jammu and Kashmir and the Legislative Assembly of Jammu and Kashmir be the same? Are Parliament and the Constituent Assembly of India the same? Such a reading can empower the executive to undermine our highest institutions and bypass established checks and balances while executing its will.”

Senior counsel for the Central government, Solicitor General Tushar Mehta, argued in submissions before the jury that the Constituent Assembly of Jammu and Kashmir was subordinate to the Constitution of India, and that both the Constituent Assembly and the Legislative Assembly of Jammu and Kashmir were synonymous and co-equal in the context of the erstwhile State.

Sibal cautioned the jury about possible subversion of the constitutional framework if the government’s sweeping, interchangeable reading of two distinct institutions was allowed to be sustained. “Tomorrow, Parliament can say it is the Constituent Assembly and do away with the Basic Structure…. If you can say in principle that Parliament can convert itself into the Constituent Assembly, then where do we go from there…. Forget about this case, I am more worried about our future…. The Constituent Assembly is a political process in the context of the aspirations of the people. It is the politics of the day which decides what a state should be like,” Sibal said.

PDP leader Mehbooba Mufti on the Supreme Court premises on August 16. | Photo Credit: ISHANT/ANI

The relation between the Centre and the State featured prominently in the arguments made by counsel for the petitioners. Governor’s rule was imposed in the erstwhile State on June 19, 2018, after the BJP pulled the plug on the coalition government led by Mehbooba Mufti. In November 2018, Governor Satya Pal Malik dissolved the State Assembly just as news circulated that the Peoples Democratic Party (PDP), the National Conference (NC), and the Congress had agreed to form a coalition government. A fax message sent to the Governor’s office by the claimants was not received as the fax machine was not functioning. Many people saw the development as political machination by the Centre to prevent these parties from forming the government. Tarigami asked: “Is Parliament empowered to dismember any other State like it dismembered J&K?” He said that “if such political incursions are to be prevented in future, it is imperative to undo New Delhi’s incursions of August 5, 2019, in J&K”.

As the erstwhile State was under President’s Rule from June 2018, the Governor acted as the Legislative Assembly in recommending the Presidential Order. The petitioners’ counsels emphasised that there was no reference to the will of the people of the State in such a pivotal matter determining their collective fate. Sibal described New Delhi’s action of August 5, 2019, as contrary to the “representative form of government”.

Former Chief Minister Omar Abdullah with his National Conference colleague and MP Hasnain Masoodi at the Supreme Court complex on August 2. | Photo Credit: PTI

NC spokesperson Imran Dar said the hearings served an important purpose by debunking false and misleading narratives that had coloured people’s understanding of Kashmir’s political history and the context of its accession to India. “Whether or not Article 370 is temporary in nature was dealt with in a precise way by the distinguished counsels, especially Kapil Sibal and Subramanium. It cleared the air on why Kashmir’s special status was the conduit to India, and not a hindrance to its integration with India. It will be difficult for the BJP to foist its manipulative and divisive narratives about Kashmir and Kashmiris on anybody who followed the hearings attentively,” Dar told Frontline.

He said that the petitioners’ counsels put forward sound arguments rooted in legality, whereas the opposing party relied largely on a “normalcy narrative” that was only a political talking point with little value in jurisprudence. The reference to “normalcy narrative” points to the government’s pre-hearing submission in the Supreme Court that abrogation of Article 370 led to an improved law and order situation in Jammu and Kashmir. In a shot in the arm for the petitioners, Chief Justice Chandrachud observed at the time that the “contents of the affidavit by the Union Government will have no bearing on the constitutional issue”.

Bearing not limited to J&K

Counsel for the government and other opposing parties insisted that Article 370 was temporary in nature. Attorney-General R. Venkataramani argued that the intention of Article 370 was to constitutionally integrate Jammu and Kashmir with India and its continuance over a period of time could be seen as a distortion of its original purpose. His argument upheld the Centre’s often-repeated claim that Article 370 impeded Jammu and Kashmir’s complete integration with India. Tushar Mehta vehemently backed the observation.

Harish Salve contended that in interpreting Article 370, the context and the history in which it was conceived was important, rather than its text alone. According to him, the President had unfettered authority to abrogate it without the recommendation of the Jammu and Kashmir Constituent Assembly, which no longer existed. On the question of Statehood, Mehta assured the court that the Centre intended to upgrade Jammu and Kashmir into a State but was unable to give a timeline.

Whatever be the apex court’s pronouncement, its bearing will not be limited to Jammu and Kashmir. It is expected to leave its mark on the ongoing discourse on India’s federalism and parliamentary traditions at a time when a section of the people think there is an attempt to undermine them.