The Abrogation of Article 370 and the Fate of Kashmir: Can States Stop Being States?
In Kashmir, mass graves, curfews, and internet shutdowns are painful symptoms of life under virtual martial law. Nestled between India and Pakistan, Kashmir has been involved in a tug of war between the two countries since its formation on October 26, 1947. As a Muslim majority state which acceeded to India, a Hindu majority nation, Kashmir was given special status and considerable autonomy as conditions to this accession. The state was to have its own constitution and flag as well as the ability to make its own laws except for matters concerning finance, defense, and foreign affairs. [1] For years, this arrangement allowed Kashmir to preserve its cultural autonomy. However, on August 5, 2019, the Indian government revoked this special status, rendering Kashmir’s constitution invalid and demoting it from the status of a state to that of a union territory. [2]
India accomplished this through abrogating Article 370 in the Indian Constitution. This crucial document codified Kashmir’s special status, allowing Kashmir to have its own constitution and relative freedom over the internal administration of the state. It endowed Kashmir with substantial agency, since the constitutional powers of India’s central government could only be extended to the state with the concurrence of the Kashmiri government. Aside from serving as the core of its legal autonomy, Article 370 is also crucial to Kashmir’s cultural independence. Article 35, which was added to Article 370 in 1954, contains provisions that ensured that only residents of Kashmir could enjoy the ability to buy property in the state, thus aiding the preservation of a distinct Kashmiri identity. [3]
Despite being the essence of Kashmiri autonomy, Article 370 nevertheless outlines how it could eventually “cease to be operative.” [4] Article 370 states that the President can declare it inoperative, but only through popular consent of the Constituent Assembly. [5] This procedure was not followed during its abrogation in 2019. Instead, Ram Nath Kovind, the President of India, declared Article 370 inoperative based on two constitutional orders, Constitutional Orders (C.O.) 272 and 273, and starkly without the approval of Kashmir’s state assembly.
This clause for Article 370’s possible demise seemed to be rendered moot in 1954 when the Constituent Assembly was dissolved and Jammu and Kashmir’s constitution came into force. [6] This could imply that it is impossible to constitutionally invalidate Article 370 now that there is no Constituent Assembly to give its “recommendation.” [7] However, the permanency of Article 370 after the dissolution of the Constituent Assembly has been tested before in the case State Bank of India vs. Santosh Gupta, which found that “Article 370 does not in any manner state that the said Article shall cease on the completion of the work of the Constituent Assembly or its dissolution.” [8] Thus, State Bank of India cemented that Article 370 was never meant to be purely transitional, and that it is a working and permanent part of the Indian Constitution.
Even disregarding this support of Article 370’s permanency, the process of its recent abrogation was carried out in opposition to the democratic and federal values exalted by the Indian Constitution. C.O. 272 and 273, which rendered Article 370 inoperative, did not obtain popular consent. The central government tried to create a loophole through the barrier that the dissolution of Constituent Assembly posed when issuing C.O. 272, stating that the words “Constituent Assembly” in Article 370 shall now be read as “Legislative Assembly of the State.” [9] This would mean that the recommendation of Kashmir’s state assembly would be enough for the President to declare Article 370 inoperative.
However, Kashmir currently has no working state assembly, as it is under president's rule. President’s rule involves the suspension of state government and direct rule by the central government, intended to be used in times of civil unrest. This means that the concurrence of the state to abide by C.O. 272 and C.O. 273, which together declared Article 370 inoperative, was in fact the concurrence of a governor appointed by the president himself. Therefore, the will of the people was not expressed. If president’s rule was not in effect, such a concurrence could only have been provided with the advice of a Council of Ministers of a popularly elected state government. Thus, the concurrence through which C.O. 272 and C.O. 273 were passed was not achieved with the actual concurrence of the Kashmiri government as Article 370 requires. [10]
In conjunction with invalidating Article 370, the Indian government passed the Jammu and Kashmir Reorganisation Act, 2019 which reduced Jammu and Kashmir’s status from being one undivided state to two union territories, which are administrative units that are directly under central government control. However, erasing entire states under president’s rule goes directly against its inherently restorative nature. Article 356 of the Indian Constitution allows president's rule only under strict conditions. The president may assume “all or any of the functions of the Government of the State” only if “a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution,” implying that it is the central government’s job to work to restore the state government until it once again functions according to constitutional standards. [11]
The Jammu and Kashmir Reorganisation Act issued under president's rule permanently changes Jammu and Kashmir’s status as a state and places it directly under central government rule. By doing so, it violates two key restrictions of president's rule. Firstly, the permanent consequences of stripping statehood violate the temporal restrictions of Article 356. According to the Article, president's rule has a six month expiry date unless there are extraordinary circumstances such as a national emergency. [12]
The second violation is more general: the Jammu and Kashmir Reorganisation Act infringes upon the principle of federalism. Federalism is clearly idealized in Indian Constitution, especially with respect to the ways one can acceptably alter a state’s borders. Article 3 states that Parliament can form new states, increase or decrease areas of states, and alter boundaries of states. [13] There is no evidence of a possible power of Parliament to extinguish an already existing state. This is because the creation of new states advances federalism, while the power to extinguish them would greatly threaten their autonomy. The principles of federalism place restrictions on presidential powers under president’s rule; thus, the stripping of Jammu and Kashmir’s statehood goes against the spirit of the Indian Constitution. [14] If this power is left unchecked, it would technically be possible to get rid of any and all states which comprise the nation—a far-fetched, yet alarming hypothetical.
The unconstitutional abrogation of Article 370 and the reorganization of Jammu and Kashmir threaten the democratic and federal principles that India was carefully built upon in 1947. Although many scholars agree that the government’s moves were unconstitutional, which bodes well for its reversal, the blatant disregard for popular consent and statehood is characteristic of a central government that is getting increasingly bold in its accumulation of authority and which has little respect for constitutional restraints. This issue will likely show up in the Supreme Court in the near future, where monumental questions about constituent power, federalism, and the future of India will likely be decided. Meanwhile, as the legal proceedings crawl along, the people of Kashmir continue to be terrorized with widespread violence, with no way for their voices to be heard in the world’s largest democracy.
[1]“Kashmir Special Status Explained: What Are Articles 370 and 35A?,” Al Jazeera (Al Jazeera And News Agencies, August 5, 2019), https://www.aljazeera.com/news/2019/08/kashmir-special-status-explained-articles-370-35a-190805054643431.html.
[2] Ibid.
[3] Ibid.
[4] INDIA CONST. Art. 370. cl. 3.
[5] Ibid.
[6] Laya Maheshwari, “How the Indian Government Changed the Legal Status of Jammu and Kashmir,” Lawfare (The Lawfare Institute, October 31, 2019), https://www.lawfareblog.com/how-indian-government-changed-legal-status-jammu-and-kashmir
[7] INDIA CONST. art. 370. cl. 3.
[8] State Bank of India vs Santosh Gupta, (2017) 2 SCC 538.
[9] C.O. 272.
[10] INDIA CONST. Art. 370. cl. 1.
[11] INDIA CONST. Art. 56. cl. 1.
[12] Ibid.
[13] INDIA CONST. Art. 3.
[14] Dr. Shah Faesal vs Union of India, Written Submission on behalf of Petitioners by Raju Ramachandran, W.P. (C) No. 1099/2019, p8 (S.C.)