New Delhi: The Modi government performed a series of legal vaults last week to strip Jammu & Kashmir of its special status, invoking Article 370 to render the constitutional provision defunct.
While there’s still no consensus on whether the move is legally tenable, the Supreme Court has, in several observations made over the years, stated that the President cannot cite Article 370 to amend it.
National Conference MPs in the Lok Sabha Mohammad Akbar Lone and Hasnain Masoodi moved the Supreme Court on Saturday challenging the government’s move.
ThePrint explores several instances where the Supreme Court has in the past weighed in on the extent of the President’s powers under Article 370.
Revoking Article 370
Before going into the Supreme Court cases, let’s take a look at how the Modi government set out to revoke Article 370.
On Monday, the President issued the Constitution (Application to Jammu & Kashmir) Order 2019 under Article 370(1) — sub-clause ‘d’ of Article 370(1) states that constitutional provisions could be applied to the state from time to time, as modified by the President with the concurrence of the state government.
The order superseded the Constitution (Application to Jammu and Kashmir) Order 1954, which added Article 35A, another special provision that allowed special privileges to the state’s ‘permanent residents’, as defined by the J&K legislature.
It also sought to amend Clause 3 of Article 370 — which allowed the President to revoke Article 370 in consultation with the “constituent assembly of the state” — to substitute the expression “constituent assembly of the state” with “legislative assembly of the state”.
A resolution moved in this regard was passed by both Houses of Parliament, and the government Tuesday scrapped Article 370 in its entirety.
Also read: Abolition of Article 370 ‘not unconstitutional’, says ex-Supreme Court judge AK Ganguly
The apex court weighs in
One of the earliest decisions concerning Article 370 was handed down by a five-judge bench of the Supreme Court in March 1961, in Puranlal Lakhanpal v. The President Of India And Others.
The petitioner here had challenged a modification made by the President to Article 81, which oversees the composition of the lower house, through an order in 1954. With this modification, MPs for J&K’s six Lok Sabha seats were to be appointed by the President on the state legislature’s recommendation, and not by direct elections.
In this instance, the court upheld the power of the President under Article 370(1)(d) to “amend” constitutional provisions.
The judges also refused to interpret the President’s power as being restricted to modifications that do not bring about any “radical transformation”. However, in this instance, the court did not make any remarks or observations about the President’s power to invoke Article 370 to amend Article 370.
Earlier, in 1955, another five-judge bench of the Supreme Court in P.L. Lakhanpal v. The State Of Jammu And Kashmir had pointed out that a presidential order under Article 370(1) could not amend Article 1 and Article 370 itself.
The case pertained to a petition filed against Article 35(c), also introduced by the 1954 presidential order, which said preventive detention in J&K could not be challenged on the grounds of fundamental rights violations for a period of five years from the directive.
The court upheld the petitioner’s detention. Even so, weighing in on the President’s powers, the court noted that a presidential order under Article 370(1) could not effect changes in Article 1 and Article 370.
“It is manifest that Article 370(1)(c) and (d) authorises the President by order to specify the exceptions and modifications to the provisions of the Constitution (other than articles 1 and 370) subject to which the Constitution shall apply to the state of Jammu and Kashmir,” the court noted.
The reasoning for this stand is that Article 370(1)(c) states that Articles 1 and 370 apply to the state. Article 370(1)(d) then empowers the President to modify “such of the other provisions” of the Constitution to suitably apply them to the state. The two provisions read together have been held to bar the President from modifying Articles 1 and 370 under Article 370(1)(d).
A subsequent Supreme Court judgment, delivered in Sampat Prakash v. State of Jammu & Kashmir & Anr in 1968, reaffirmed the reasoning offered in the Puranlal Lakhanpal case.
The 1968 case stemmed from a petition against an extension for the aforementioned immunity granted to preventive detention in J&K, which barred challenges on the grounds of fundamental rights.
The five-judge bench hearing the case said, “As already stated, Art. 370(1)(d), in terms, provides for the application of the provisions of the Constitution other than Articles 1 and 370 in relation to Jammu & Kashmir with such exceptions and modifications as the President may by order specify.”
A similar reasoning was supported by a two-judge bench in Khazak Chand and Others v. State of Jammu and Kashmir and Others in 1984.
Also read: Will Modi govt move on Kashmir’s Article 370 stand the scrutiny of Supreme Court?
The constituent assembly’s wish
In its judgment in the Sampat Prakash case, the Supreme Court had also held that the constituent assembly of the state, which ceased to exist in the 1950s, had opined against the abrogation of Article 370.
The petitioner had questioned the continued existence of Article 370, saying the provision — listed as temporary in the Indian Constitution — ceased to be operative once the constituent assembly fulfilled its brief by framing a separate constitution for J&K.
The bench had rejected the contention, quoting Article 370(3), which makes the constituent assembly’s nod mandatory for the abrogation of Article 370. The assembly, the court noted, had “expressed its agreement to the continued operation of this article”.
The matter was dealt with again in December 2016, when the court was asked to decide whether the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), dealing with the recovery of dues by banks, was applicable in J&K. The case is documented as State Bank of India v. Santosh Gupta and Anr.
Handing out its judgment in the case, the court noted that the Act did apply to J&K, where central laws are not automatically effected upon passage in Parliament.
As it weighed in on presidential powers vis-a-vis laws in the state, the two-judge bench held that Article 370 clearly stated when it will cease to be operative: After a presidential order, on the recommendation of the state’s constituent assembly.
The bench added that while Article 370 was called a “temporary provision” by the Constitution, it wasn’t subject to any time limit.
Also read: The constitutional questions that arise from the end of Jammu and Kashmir as a state