THE LAWWAY WITH LAWYERS JOURNAL
VOLUME:- 3 ISSUE NO:- 3 , SEPTEMBER 23 ,2023
Anna Mariam Ramacha Thykkadavil
5 th semester, 3-year unitary LLB
Government Law College, Thiruvananthapuram
Mittu Santhosh
7 th semester, 5-year BA LLB
Government Law College, Thiruvananthapuram
ABROGATION OF ARTICLE 370: PARLIAMENT’S BLITZKRIEG TO FORGET A PAST PROMISE
TABLE OF CONTENTS
SL.NO CONTENTS
PAGE
1
Introduction
1
2
Brief Facts and Procedural History
2-4
3
Unconstitutional Ventures on 5th August 2019
4-7
4
Conclusion
7Abrogation of Article 370: Parliament’s Blitzkrieg to Forget a Past Promise
1
1. V.P MENON, ‘INTEGRATION OF THE INDIAN STATES P.P 397-400; Gandhi, Patel pp.442-
444
2. Press Information Bureau Government of India, ‘Two Bills and Two Resolutions passed in Rajya
Sabha unanimously; New Delhi; August 5, 2019
3. The Wire, ‘Crippling Communication Clampdown Takes a Toll on Kashmir’s Districts Reporters’;
Majid Maqbool, October 26, 2019,
ABROGATION OF ARTICLE 370 :
PARLIAMENT’S BLITZKRIEG TO FORGET A PAST PROMISE
Jammu and Kashmir – a Princely State of serene beauty that later stood amidst our
neighbour, culturing chaos and nourishing critical international attention. After a
year-long confusion and turmoil, since the Indian Independence of 15th August 1947,
the Princely State of Jammu and Kashmir acceded to India by an ‘Instrumentality of
Accession’ on 27th October 1947. 1
On 5th August 2019, the storyline takes a deviation after seven decades by a few
historic measures made by the Union Legislature and Executive. First, a Presidential
Order to provide interpretation rules for provisions in the Constitution related to
Jammu and Kashmir. Second, aa Statute was brought forth bifurcating the then Union
Territory of Jammu and Kashmir into Jammu and Kashmir, and Ladakh; Third, a
resolution for repealing Article 370 of the Constitution of India that had given special
status to Jammu and Kashmir. 2 To suppress any dissent and media coverage of what
really happened at the state affected, the Centre immediately imposed internet
breakage, communication clampdown, continuous blockade on the free flow of
information by media, detention of opposing youth and political leaders, and
imposition of s.144 CrPC. 3 The methodology is identical to Blitzkrieg – an attacking
scheme inculcating speed, vigour and surprise, used by the German military to win
WWII, but this time, to win over the past and the future; to portray themselves as the
leadership who corrected the historic blunder as they say to become ‘saviour’.Abrogation of Article 370: Parliament’s Blitzkrieg to Forget a Past Promise
2
4. RAMACHANDRA GUHA , ‘INDIA AFTER GANDHI’, Chptr 4: ‘A Valley Bloody and
Beautiful’ pp 60, Alastair Lamb, Kashmir: A Disputed Legacy, 1846-1990 (Karachi: Oxford
University Press, 1992)
5. Karan Singh , ‘Autobiography’ revised edn (Delhi: Oxford University Press, 1994), pp 18-19
6. RAMACHANDRA GUHA , ‘INDIA AFTER GANDHI’, Chptr 4: ‘A Valley Bloody and
Beautiful’ pp 61
7. RAMACHANDRA GUHA , ‘INDIA AFTER GANDHI’, Chptr 4: ‘A Valley Bloody and
Beautiful’ pp 62
8. RAMACHANDRA GUHA , ‘INDIA AFTER GANDHI’, Chptr 4: ‘A Valley Bloody and
Beautiful’ pp 64
Brief Facts and Procedural History
The once scattered territories were unified as a single state by the Dogra clan from
Jammu in the nineteenth century, who later conquered Ladakh in 1830s. They then
conquered Kashmir Valley in 1840s. They moved into Gilgit by the end of the
century. Thus the state of Jammu and Kashmir came into existence.4
In 1947 this princely state of 84,471 miles was ruled by Maharaja Hari Singh, a
Hindu, who ascended the throne in 1925 to rule over a Muslim majority population
(almost 53%). There was oppression, biased governmental appointments and other
corruptions favouring Hindus. As his fourth and youngest queen complained, he just
sits surrounded by fawning courtiers and favourites, and never really gets to know
what is going on outside.5 Thus an All-Jammu-Kashmir Muslim Conference was
constituted in 1932, which later came to be called National Conference with Sheikh
Abdullah as its lead and included Hindus and Sikhs this time. It wanted to stand
against the unaccountable nature of the Maharaja.6 The princely state was offered
two choices- to join either India or Pakistan. As the state shared borders between the
two dominions, the strategic importance was at its peak. On 15th July 1946, Maharaja
stated that the Kashmiris would ‘work out our own destiny without dictation from
any quarter which is not integral part of the State’.7 Lord Mountbatten and even
Mahatma Gandhi’s visits failed absolutely. The situation got into utmost stress
during October 1947, when tribes force of Pathans from Pakistan crossed the border,
briskly made their way towards Srinagar and then to Uri, Mahuta and Baramulla.8Abrogation of Article 370: Parliament’s Blitzkrieg to Forget a Past Promise
3
9. “Memorandum to the Security Council”, 1 January 1948. Choudhary (ed.), supra note 14, vol. 8, pp.
392-393
10. Ibid
11. V.P MENON, ‘INTEGRATION OF THE INDIAN STATES P.P 397-400; Gandhi, Patel pp.442-444
12. Instrument of Accession of Jammu and Kashmir signed on 27th October 1948.
13. S.N Prasad and Dharm Pal, History of Operations in Jammu and Kashmir (1947-1948) (New Delhi:
Ministry of Defence, 1987) pp. 28f., 379
They were armed with modern weapons,wore the battle dress of regular soldiers and
used the tactics of modern warfare.9 The aim of the attack was to foment an internal
revolution in Kashmir.10 On 24th October Maharaja wired Indian Dominion for
military assistance. After a few Defence Committee meetings in New Delhi, listening
to suggestions by Lord Mountbatten, that “it would be best to secure Hari Singh’s
accession to India before committing any forces to his defence, otherwise Indian
troops would be entering a foreign country”, V. P Menon took the flight to Kashmir
where Maharaja had taken refuge. Maharaja agreed to accede at once. Menon took
the signed Instrument of Accession back with him to Delhi.11
Thus, by virtue of the Instrument of Accession of Jammu and Kashmir, Shriman
Inder Mahendra Rajrajeshwar Maharajadiraj Shri Hari Singh, Ruler of Jammu and
Kashmir acceded to the Dominion of India. The major conditions made were that,
the subject matter related to Schedule I (defence, external affairs, communications
and ancillary matters including elections) can only be legislated by Dominion
Legislature; the terms shall not be varied by any Amendment or Indian Independence
Act, 1947 unless accepted by Maharaj by supplementary Instrument; land acquisition
cannot be done by Indian Dominion, except for Schedule I but only on its own
expenses; also, this Instrument is not a commitment to accept future Indian
Constitution.12 At dawn on the 27th October, the first plane left Delhi for Srinagar
with troops and arms aboard and more than a hundred planes followed, carrying
soldiers and supplies and bringing back refugees and the wounded.13Abrogation of Article 370: Parliament’s Blitzkrieg to Forget a Past Promise
4
14. K.M. Munshi, Indian Constitutional Documents: Pilgrimage to Freedom (Mumbai: Bharatiya Vidya
Bhavan, 2013), vol. 2, at p. 434
15. Dr. Abhinav Chandrachud, ‘THE ABROGATION OF ARTICLE 370’pp.7
16. http://egazette.nic.in/WriteReadData/2018/194042.pdf
17. INDIA CONST. art. 370, cl. 1.d.
Atemporary set up for Jammu and Kashmir in the Indian Constitution was suggested
by B. N Rao due to three reasons. Firstly, the state was undergoing a war. Despite a
UN Ceasefire Declaration, the state was suffering from abnormal and unusual times.
Secondly, part of the state was still within the control of the rebels. Thirdly, the matter
was taken up by the United Nations and not settled completely.14 But there was an
issue whether a ruler could accede to a foreign nation without the consent of his
people. From the memorandum to United Nations Security Council and many letters
sent by the then Indian Prime Minister Jawaharlal Nehru to Maharaj, its evident that
Indian Dominion wanted to know the will of the people after invaders left the state
and peace was restored.15 This was to be made through a plebiscite, which is a direct
vote by the people of a country or region in which they say whether they agree or
disagree with a particular policy. But it was never conducted.
Unconstitutional Ventures on 5th August 2019
The state of Jammu and Kashmir was under President’s rule16 in accordance with
Article 356 of the Constitution at the time of abrogation of Article 370 and
bifurcation of state. Firstly, the President issued the Constitution (Application to
Jammu and Kashmir) Order, 2019 (“C.O. 272”) under Article 370(1)(d)17 which
stated that the “concurrence of the Government of the State of Jammu and Kashmir”
is necessary. However, since the State was under President’s rule, the concurrence
was obtained from the Governor of Jammu and Kashmir acting on behalf of the
President. The above order extended all provisions of the Constitution, as amended
from time to time, to the State of Jammu and Kashmir and modified Article 367 of Abrogation of Article 370: Parliament’s Blitzkrieg to Forget a Past Promise
5
6
18. http://egazette.nic.in/WriteReadData/2019/210243.pdf
19. Jammu and Kashmir Reorganisation Act, 2019, No. 34, Acts of parliament,
20. State Bank of India v. Santosh Gupta, (2017) 2 SCC 538.
the Constitution in relation to the State by replacing the expression “Constituent
Assembly of the State” with “Legislative Assembly of the State” in the proviso to
Article 370 (3). Secondly, the Parliament issued another notification; Constitution
Order 27318 declaring the cessation of Article 370 except an amended clause which
provided that all provisions of the Constitution, as amended from time to time, and
without any modifications or exceptions would be applicable to the State of Jammu
and Kashmir. Thirdly, Parliament enacted the Jammu and Kashmir
Reorganization Act, 201919 which took away the statehood of J&K altogether and
divided the state into two union territories: Jammu and Kashmir, and Ladakh; the
former with a separate Legislative Assemblies and the latter without one.
The aforementioned events prompted to question on the constitutional validity of the
nature of presidential rule, the procedure adopted by the parliament to abrogate
Article 370 and the bifurcate the state during the operation of President’s rule.
Regarding the abrogation of Article 370, clause 3 of the same provided that the
recommendation of the Constituent Assembly of the State shall be necessary before
the President issues such a notification. Further, in State Bank of India v. Santosh
Gupta, (2017)20, the Supreme court reiterated that the President cannot issue an order
ceasing to make Article 370 operative without the recommendation of the
Constituent Assembly of J&K. However, the President did not obtain the
recommendation of the Constituent Assembly of J&K to modify the definition of
“Constituent Assembly of the State” in the proviso to Article 370(3) of the
Constitution. The C.O. 272, which sought to change the definition of “Constituent
Assembly of the State” of J&K in Article 370(3) of the Constitution by adding a7Abrogation of Article 370: Parliament’s Blitzkrieg to Forget a Past Promise
6
21. The Abrogation of Article 370 , Dr. Abhinav Chandrachud , https://ssrn.com/abstract=3448331 .
clause to Article 367 of the Constitution is illegal. Article 370(3) says that Article
370 itself cannot be modified without the recommendation of the “Constituent
Assembly of the State”. By changing the definition of “Constituent Assembly of the
State” in Article 367, the President has, in effect, modified Article 370 without the
recommendation of the Constituent Assembly of the state.21 Moreover, a constituent
assembly was a political body made to draft a constitution while a legislative
assembly was elected by the people and had to strictly work within the confines of
the Constitution. Thus, the Indian parliament, under the current constitutional
framework, could not convert itself into a Constituent Assembly. Since October
1947, the underlying understanding between India and J&K was that the Instrument
of Accession was the basis of J&K’s accession to India and that no change would be
made to it without the consent of the people. Notwithstanding, the Government of
India has altered the constitutional position of J&K without the elected
representatives of state. For this reason, the President’s declaration under C.O. 273,
which relies on the resolutions of both houses of parliament instead of the state
legislature of J&K, violates the spirit of Article 370 of the Constitution.
Correspondingly, the amendment of Article 370 through Article 367 is invalid. A
simple amendment to Article 367, instead of following the process under Article 368,
provides incentives to executive to carry out substantive amendments under the guise
of amending the definition clauses which would result in grave repercussions for the
democratic set up of the country. This backdoor amendment without the invocation
of Article 370(3) had been executed as Article 370 could not have been amended
directly without the recommendation of the Constituent Assembly of J&K. This
clever movement by the parliament shall be read together with the swift dissolution.Abrogation of Article 370: Parliament’s Blitzkrieg to Forget a Past Promise
7
22. The Abrogation of Article 370 And Bifurcation Of Jammu And Kashmir – A Bridge Too Far ,
Kashish Mahajan, IJCL, NALSAR,
Available at: https://ijcl.nalsar.ac.in/wpcontent/uploads/2020/08/9IndianJConstL106_Mahajan.pdf
23. Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184.
24. Kuldip Nayar v. Union of India, (2006) 7 SCC .
of the legislative assembly of the state to infer the politically motivated objective
behind the act.
With regard to the imposition of President’s rule in the state, it was in light of a
political crisis in the State due to the majority government losing its support in the
Assembly and the incapability to form an alternate government commanding the
confidence of the Assembly. However, abrogation of article 370 and bifurcation of
the state on account of curbing terrorism and promoting full integration of Jammu
and Kashmir falls outside the scope of intended objective of the proclamation which
was a political crisis in reality. Therefore, the President and Parliament have acted
beyond the scope of their constitutionally-prescribed powers in relation to Article
356.22 The Jammu and Kashmir Reorganisation Act, 2019 is constitutionally invalid.
The Supreme Court has said that India is “an indestructible Union of destructible
units.”23The court has also held that Parliament cannot merely change the boundaries
of a state but also “extinguish a State”.24 However, under the 1954 Presidential order,
before exercising any powers under Article 3 of the Constitution in Jammu Kashmir,
Parliament was required to secure the consent of the state legislature there. Therefore,
the act of repealing the 1954 order without the concurrence of the state legislature
shall be rendered unconstitutional. Curtailing fundamental rights (Part III) of the
Constitution by restricting communication, assembly, free movement, information
and others in the name of sovereignty and integrity of the country reminds Lord
Acton’s words, “All power tends to corrupt and absolute power corrupts absolutely”.Abrogation of Article 370: Parliament’s Blitzkrieg to Forget a Past Promise
8
Conclusion
The matter is currently pending before the Hon’ble Supreme Court of India. It is the
need of the hour to put an end to the never-ending disputes regarding the permanence
of Article 370 post the dissolution of Constituent Assembly and to declare a valid
successor to the same. Besides, it is pertinent to define the scope and extent of
President’s rule in relation to Article 356 in this context. In the exercise of
Constitutional interpretation, intentions of the Constitutional drafters, wherein the
citizens submit their last hope, shall not be sidelined at any cost.
