Correcting A Historical Error

The Supreme Court’s verdict, upholding the constitutional validity of the abrogation of Article 370, which granted special status to Jammu and Kashmir, represents a pivotal moment in the constitutional history of India. The five-judge bench meticulously examined both historical and constitutional facets, largely aligning with the central government’s contentions. This landmark judgment conclusively settles a constitutional debate that kept the nation’s politics boiling for over seven decades.

The Court made the following key observations as part of its judgment-

•Article 370 was only intended as a transitional provision, temporary in character, and the President was hence empowered to abrogate it.

•Jammu & Kashmir ceased to have any internal sovereignty once it acceded to the Union of India.

•The President can unilaterally exercise his powers and seek the concurrence of the Union government instead of the State government for applying all provisions of the Constitution to J&K.

•Every decision of the central government taken on behalf of the states cannot be subject to a legal challenge and cannot lead to the state’s administration coming to a standstill.

•Notably, Justice Sanjay Kishan Kaul recommended the setting up of a Truth and Reconciliation Committee to investigate the incidents of violations of human rights by state and non-state actors since the 1980s.

Few constitutional issues in modern India have had such a polarising impact on the nation’s political landscape. The nuanced discourse surrounding Article 370 extended even to the judiciary, which, in the past, rendered conflicting verdicts as to whether Article 370 was a temporary provision. In Prem Nath Kaul v. State of Jammu and Kashmir (1959), a Constitution Bench of the Supreme Court, consisting of five judges, held that it was a temporary provision. However, in the decision of Sampath Prakash (1968), the Court came up with the opposite verdict. That too was a five-judge Bench.

It is a documented fact that Dr. Ambedkar, as chairman of the drafting committee, and Sardar Patel, who ensured smooth integration of more than five hundred princely states in the Union of India, were vehemently opposed to the idea of giving special status to the state of J&K. Dr. Ambedkar refused to draft the provisions of article 306A (that later became article 370) which he believed “would be a treacherous thing against the interest of India.” He also refused to attend the session that passed the motion. It was after Dr. Ambedkar’s refusal that Nehru got N. Gopalaswami Ayyangar to do the job.

When Ayyangar tabled the draft article in the constituent assembly on October 17, 1949, he stated, “In the case of practically all States other than the State of Jammu and Kashmir, their constitutions also have been embodied in the Constitution for the whole of India. All those other States have agreed to integrate themselves in that way and accept the Constitution provided.”

At that point, Maulana Hasrat Mohani, a renowned poet and the constituent assembly member from the United Provinces interjected, “Why this discrimination, please?”

To which Ayyangar replied: “The discrimination is due to the special conditions of Kashmir. That particular State is not yet ripe for this kind of integration.” He added: “It is the hope of everybody here that in due course even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other States. At present it is not possible to achieve that integration. There are various reasons why this is not possible now.” Looking at Ayyangar’s response one can deduce that Article 370 was never really intended to become a permanent feature of the Constitution and it was rightly placed in Section 21 of said Constitution.

Despite being a temporary provision, Article 370 over the years acquired a de facto permanence, as successive governments displayed a lack of will to rectify this historical anomaly. Indeed, a section of the political class led by the Congress Party made concerted efforts to ensure the preservation of Article 370 and Article 35A. It’s worth mentioning here that Article 35A was not part of the original draft constitution. Instead of following the prescribed amendment procedure outlined in Article 368 of the Constitution of India, it was incorporated through a simple Executive Order by the President of India. This means that the amending power of Parliament under Article 368 of the Constitution of India was abridged in its application to Jammu & Kashmir. Some critics have rightly called Article 35A the biggest “fraud” perpetrated on the Constitution of India. Until its repeal, Article 35A stood as the most unconstitutional provision in that document, infringing not only established constitutional procedures but also the fundamental rights enshrined in Articles 14, 15, 16, 19, and 21 of the Constitution of India.

By abrogating Article 370 and 35A in August 2019 the Narendra Modi government not only fulfilled one of the major commitments of the ruling party, it also corrected a historical blunder that kept the people of J&K from fully integrating into the Union of India. The Supreme Court’s judgment has granted constitutional sanctity to the decision, emphasising the need to foster national unity and dismantle barriers that hitherto impeded the region’s socioeconomic development.