The Supreme Court upheld the decision to abrogate Kashmir’s special status—surprising no one. But it also left open a legal door that would allow union governments to change the status of a state to a union territory—which could have serious consequences. In part one, we offer context for Article 370—and explain the ruling.
Researched by: Nirmal Bhansali & Aarthi Ramnath
The birth of Article 370
The circumstances: When India and Pakistan gained independence in 1947, the Maharajah of Kashmir Hari Singh had a serious problem. He didn’t want to join India—since that meant embracing parliamentary democracy and losing his kingdom. But the prospect of hitching his fortunes to a Muslim-majority Pakistan wasn’t appealing either.
Circumstances, however, made the decision for him. On October 22—tired of Singh’s dithering—Pakistan invaded Kashmir. Two days later, Singh appealed to India for military assistance. But the outgoing governor-general Louis Mountbatten insisted that he first sign an Instrument of Accession.
The Instrument of Accession: Hari Singh signed a document that reflected a less-than-hearty embrace of India—and did its best to preserve Kashmir’s independence. It plainly said:
Nothing in this instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.
And a 1948 proclamation issued by him signalled that Jammu & Kashmir would not be bound by the Indian Constitution—but would have a constitution of its own.
The path to Article 370: That deep-seated ambivalence was baked into Article 370—which sealed Kashmir’s accession to India. At the very outset, all parties agreed that the 1947 accession was limited to three subjects: foreign affairs, defence and communications. A state constituent assembly would decide what other parts of the Indian Constitution would apply to J&K. In the end, the state constituent assembly was only established in 1951.
But, but, but: The status of Kashmir was, in fact, decided by the Constituent Assembly in Delhi in 1949—while framing the Indian Constitution. It essentially reaffirmed that other than Article 1—which says that India is a Union of States—the Constitution of India will not be applicable to Kashmir. The state will have its own constitution, a separate flag and its own laws. Those three areas—foreign affairs, defence and communications—will remain in the preserve of the Union government.
Key point to note: Despite seeming iron-clad, successive governments have found a way to exercise ever greater control over Kashmir. As of April 2019, approximately 260 provisions of the Constitution applied to Jammu and Kashmir in some form or the other.
The abrogation: What happened in August, 2019
In one fell swoop, the government stripped Jammu & Kashmir of its special status and its statehood. And it did so in a roundabout way aimed at sidestepping a) the need for a constitutional amendment and b) any consultation with the people of J&K or their representatives. Here’s how it was done.
The clauses that matter: Four parts of the Constitution were at play here—the most important bits are highlighted in bold:
- Article 370—which we already explained above.
- Clause 1(d) of Article 370. This basically states that the President can issue an order to make the Indian Constitution applicable to Kashmir but only with the concurrence of the state government.
- Clause 3 of Article 370. This is like a self-destruct button. It reads: “the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications” but only with the recommendation of the Constituent Assembly of the State.
- Article 367: specifies how terms used in the Constitution will be interpreted.
What the government did not do: They did not revoke Article 370 which was left in place. Why? Because it would need the approval of J&K’s Constituent Assembly—which no longer exists and will have to be reconstituted. Moreover, the Supreme Court had ruled in 2018 that it views Article 370 to be a “permanent” part of the Constitution. Therefore, the government took a legally inventive route.
Step one, The Constitution Order: On August 5, President Kovind instead issued The Constitution (Application to Jammu and Kashmir) Order (CO272). Here’s what it did:
- It invoked clause 1(d) of Article 370 to add a new provision to Article 367—that solely applies to Kashmir.
- This new provision changed the meaning of two terms. One: the government of Kashmir (Legislative Assembly) now refers to the Governor of Kashmir. Two: The Constituent Assembly now refers to the state’s Legislative Assembly.
And here’s how it worked: Having changed the meaning of these key terms—solely through the order—it used this amended Article 367 to strip two key clauses of Article 370.
- Clause 1(d)—which required the consent of the J&K state government. As per the new Article 367 provision, then Kashmir Governor Satyapal Malik—appointed by the President and nominated by the Union government—was now considered to be the government of Kashmir. He then gave consent to applying all parts of the Constitution to J&K.
- Clause 3 was the self-destruct button which required the consent of a Constituent Assembly—which was changed to the state’s Legislative Assembly. That didn’t exist at the time since Kashmir was under President’s rule. But this change is crucial to understand what the government did next and why.
Step 2, the statutory resolution: Since Kashmir was under presidential rule, the government claimed that the powers of the state assembly have been passed to parliament—which could now approve what came next. Armed with the constitutional order, the Rajya Sabha passed a statutory resolution that delivered the final blow to Article 370:
- It annulled all clauses of Article 370—leaving only a modified Clause 1 in place.
- This modified Clause 1 now reads: “All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir…”
On August 6, President Kovind issued a second Constitution Order (273) that gave the seal of approval to the statutory resolution. Article 370 was abrogated.
Step 3, the Jammu and Kashmir Reorganisation Bill: Having essentially eliminated Article 370, the government pushed through a bill in the Rajya Sabha which did the following:
- It divided the state into two Union Territories: Ladakh and J&K.
- Ladakh would not have a legislature—like Chandigarh, for example.
- J&K would have a legislature headed by a Chief Minister who can “advise” the Lieutenant Governor—who typically has far greater powers than a state’s governor in a UT.
- In J&K’s case, however, the Lt Governor will exercise far more discretion—including the right to veto any bill passed by the state legislature.
Mission accomplished! At the time, many constitutional experts were convinced the ruling would not stand up in court. They have been proved to be wrong.
The 2023 ruling: The main arguments against abrogation
The petitioners opposing the abrogation of Section 370 posed two key challenges:
The first challenge: questioned the constitutionality of the back-door strategy used by the government: “The petitioners applied the ‘doctrine of colourable legislation’ which means that ‘what cannot be done directly, cannot be done indirectly’.”
The second challenge: argued that the government had no constitutional grounds to change the status of Jammu & Kashmir to a Union Territory:
[T]hey contend that the Jammu and Kashmir Reorganisation Act, 2019 was unconstitutional under Article 3. This Article empowers the Parliament to form new States and alter or modify the boundaries of existing states. The petitioners argue that Article 3 does not give the Parliament powers to downgrade federal democratic states into a less representative form such as a Union Territory.
By doing so in the case of Kashmir, the government violated the fundamental right to “autonomous self-government”—which “cannot be taken away without the due procedure established by the law.”
The 2023 ruling: What the Court said
The reading list has more technical analyses of the ruling, but this is essentially what it said:
One: Jammu & Kashmir was never intended to be a sovereign state. Its constituent assembly was intended to be temporary—as was its special exemption from the Indian Constitution. The state joined the union exactly the same way as all other princely states—at the time of independence.
The state of Jammu and Kashmir does not retain any element of sovereignty after the execution of the IoA (instrument of accession) and the issuance of the proclamation dated 25 November 1949 by which the Constitution of India was adopted. The state of Jammu and Kashmir does not have ‘internal sovereignty’ which is distinguishable from the powers and privileges enjoyed by other states in the country.
The Chief Justice said Article 370 was a “temporary provision”—that “served a purpose in the war-like situation prevailing in the state in 1947.”
Two: The Court dismissed all arguments against the government’s roundabout method of abrogating Kashmir’s special status. Remember the Constitution Order issued by President Kovind—that set the ball rolling? The CJI said that the President can assume “all or any” roles of the state legislature—and flatly declared that there is “no prima facie case that the President’s orders were malafide or extraneous exercise of power.”
The very bizarre bit: The government achieved its sleight of hand with a Constitution Order issued by the president—which amended Article 367—to change the meaning of terms in Article 370. The Court agreed this first Constitution Order was “constitutionally invalid”—saying that “Article 370 cannot be amended by the exercise of power under Article 367, which is only an interpretative clause and not an amending power or provision.”
But, but, but: It claimed that the President’s second Constitution Order (273)—which annulled Article 370—was perfectly fine. He had the power to unilaterally remove Kashmir’s special status without any recommendation because:
The continuous exercise of power under Article 370(1) by the President indicates that the gradual process of constitutional integration was ongoing. The declaration issued by the President under Article 370(3) is a culmination of the process of integration and as such is a valid exercise of power. Thus, CO 273 is valid.
It’s an odd bit of circular reasoning.
The bottomline: The ruling was not surprising. And many in India would agree with its central claim—that Kashmir was always intended to be an integral part of India. But the Court refused to tackle the most dangerous act taken by the government—to unilaterally change the status of a state. In part two, we explain why this matters.
Reading list
NewsLaundry, Indian Express and The Telegraph have useful overviews of the ruling. The Supreme Court Observer does a great job of summing up the key challenges to Article 370. Pratap Bhanu Mehta in Indian Express lays out a nuanced critique of the ruling. The Wire has more on the legal history of Article 370. Constitutional expert Gautam Bhatia had this to say about its abrogation in 2019. Vidhi Centre for Legal Policy looks at how its application has evolved over time. We did a very good Big Story on the political history of Kashmir—and explained the lead up to its accession.
