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Will Modi govt move on Kashmir’s Article 370 stand the scrutiny of Supreme Court?

Many scholars have questioned the constitutional validity of Narendra Modi government's decision to scrap Article 370 that gives special status to Jammu & Kashmir.

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Many scholars have questioned the constitutional validity of Narendra Modi government’s decision to scrap Article 370 that gives special status to Jammu & Kashmir. They have asked if Article 367 of the Constitution could be amended to include a new provision without constitutional amendment or if Article 370 could be scrapped only with the President’s consent and not that of the state assembly.

ThePrint asks: Will Modi govt move on Kashmir’s Article 370 stand the scrutiny of Supreme Court?


Supreme Court knows scrapping of Article 370 is a matter of national security & will not intervene

Ishkaran Bhandari
Advocate

Before we debate on whether the Modi government’s move to scrap Article 370 will stand the scrutiny of the Supreme Court, it is important to understand what changes the government has introduced.

First, it has scrapped the 1954 Presidential order on Article 35A and replaced it with a new one, thereby abolishing the article. Second, it has bifurcated the state and created two union territories, out of which Jammu and Kashmir will have elections as and when the situation permits, and Ladakh will not have elections. And third, while on paper Article 370 still stands, in actuality, it has been nullified.

Even if someone does challenge the abrogation of Article 370, I doubt the Supreme Court will entertain such a challenge because Article 370 was always supposed to be a temporary provision. Second, the government has abolished Article 35A in the same way it was introduced – by a presidential order. So, if the abolishment is not recognised, neither will its introduction be, by the same reason. And finally, the Supreme Court also knows that the scrapping of the provision is related to issues of national security and territory, and, therefore, will not intervene in the matter.


Also read: The constitutional questions that arise from the end of Jammu and Kashmir as a state


Even if Modi govt had repealed Article 370 as per procedure, it still would be a direct attack on the Constitution

Alok Prasanna Kumar
Senior Resident Fellow at Vidhi Centre for Legal Policy

The question of whether the manner of the repeal of Article 370 will withstand scrutiny in the Supreme Court is independent of the legal and constitutional correctness of the same.

Legally and constitutionally, the ‘repeal’ of Article 370 is of questionable validity. The Modi government has attempted to amend the Constitution without following the procedure laid down in Article 368. Even if it had repealed Article 370 following proper procedure, I’d still argue that it is a direct attack on the basic structure of the Constitution, specifically on federalism. Even though it has attacked only Jammu and Kashmir, the assertion of power is a direct assault on the idea of shared sovereignty between the Centre and the states.

However, I do not expect the Supreme Court to strike down the legal measures in this context. Thanks to the actions of recent and current CJIs, the Supreme Court has no credibility left to uphold the Constitution in the face of the government’s actions. It will find ways and means to justify the illegalities committed by the government. One only needs to see the majority opinions of the Supreme Court in ADM Jabalpur v Shiv Kant Shukla case to see the cowardice with which the court will approach any constitutional challenge to the ‘repeal’ of Article 370.


Also read: After Article 370, Modi’s first test in Kashmir will begin once curfew is lifted


Modi government’s repeal of Article 370 is perfectly legal

B. V. Acharya
Former Chief Public Prosecutor 

The Modi government’s repeal of Article 370 is perfectly legal. This is because everything has been done as per the law. In view of sub-article 3 of Article 370, which empowers the President to decide the limit of the jurisdiction of the Indian Constitution over the state, the abrogation has been issued.

Moreover, a separate bill has been introduced in Parliament. This bill, called the Jammu and Kashmir Reorganisation Bill, essentially bifurcates the state into two union territories—Jammu and Kashmir, and Ladakh. The former will have a legislative assembly, like Delhi and Pondicherry, and the latter will not.

If anyone does challenge this bill, it will not stand.

Of course, if it does go to the Supreme Court, it will agree to hear the matter. This is because it involves some substantial questions. However, in my opinion, the Supreme Court, in the end, will uphold the bill that essentially ends the special status given to Jammu and Kashmir.


Legally, Supreme Court should not stand by Modi govt’s decision to scrap Article 370

Pranesh Prakash 
Fellow, Centre for Internet and Society

In the first case regarding Article 370 (Prem Nath Kaul v. State, 1959), the Supreme Court underscored the importance of the Jammu & Kashmir constituent assembly’s role. But in two other cases (Sampat Prakash v. State, 1968, and MM Damnoo v. State, 1972), it differed without even citing the 1959 case.

Some might argue that given the number of presidential orders passed under Article 370, starting with the Nehru government, there is little left to protect in the article. That’s partially true, but it is also true that Article 370 symbolises a contract between the state of Jammu & Kashmir and the Indian Union, which was negotiated as a condition of its accession to India. It doesn’t allow for the President to unilaterally abolish the article without the recommendation of the constituent assembly of the state. Monday’s presidential order will not stand judicial scrutiny. That’s why, despite the constant erosion of Article 370, it is still politically and legally unacceptable.

If this is allowed by the Supreme Court, then the federal nature of the country will cease to be, along with its democratic nature.

The way it has been carried out reeks of an authoritarian and undemocratic state action.


By Revathi Krishnan and Taran Deol

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9 COMMENTS

  1. The Editors oe The Print like all the other editors are PRESTITUTES ie they are agents of India’s enemy .They take tons of money from these foreign countries and distribute some to their journalist with instruction to condemn India so that India cannot prosper.If Pakistan and China give a bit more Dollars,these cheap skate PRESTITUTES will sell their wifes and daughters!

  2. Too many Dicks just looking for attention. The Print is stirring pot. When Government makes major changes do you think they’ll just do it with out consulting to top dogs. Amit shah n Narendra Modi they are not that stupid. You asked these few people’s opinion. I bet no one listens to them in they’re own family. When 85% citizens are behind they’re government then supreme Court don’t want to get involved in this shit. Just like Ayodhya’s Ram Mandir case. It’s better to shut up n go with flow. Yes I understand if there is barbarian activities happening. Whole country work hard n eat daal n chappati. N most kashmiris have Mogulie biryani. These suckers needs straight they’re act together. 70+ years Congress was making Indians fuddus. Those days are gone and they should accept present reality along with they’re chamchas.

  3. Legal niceties aside, about 97 percent of Kashmiries think that by abrogating Article 370 and Article 35 -A, BJP, has betrayed the people of Jammu and Kashmir. Seventh straight day curfew, suspension of internet and telephone services, and the incarceration of the Kashmiri political leaders speak louder than any legal commentary in favor of BJP’s government. India has lost its pluralistic and democratic soul.

  4. The fact that the Constitution of India as created by its founders is a “living document” which can be altered as per the wishes of the people of India through their elected representatives acting based on popular will means Amendments to the Constitution are not just democratic but the whole purpose and reason that an Amendable Constitution exists ! Unlike the Stone Tables of Moses – the Articles of the Constitution are not set in stone – they exist to serve the will of the people and the Legislature has the sole authority and purpose to carry out the will of the people as they are most closely linked with the people .

    Further in terms of the Article 370, if it is taken to be a “contract” between the Kashmiris and India – then the fact that for over 3 decades we have seen numerous Kashmiris both overtly and covertly cause disaffection, mount insurrection and openly challenge India’s right to be there is itself violation of the “contract” of accession and constitutes a breach. The egregious calamity that took place with the Kashmiri PAndits further underscores the total collapse of the “contract”. between the Union of India and Kashmiris. Continuing such a pretense any longer is a farce.

    The SC of India would be well advised not to perpetuate a “farce” called “special relationship” as none of the conditions of accession have been met.

  5. Funny reading the views of the guys opposing the decision. They couldn’t clearly state the reasons why bill wouldn’t stand legal scrutiny except giving lectures on how it’s an assault on federalism. Pathetic

  6. I would also like request print that moderating comment of reader on your website is joke and hypocrisy of your stand on Freedom of speech . Please get away with such unneceasary requirement .how would u feel if govt start doing with u that every article of yours will require approval . This is just unacceptable . Preach what you doband do what you preach

    Thank you

  7. There are world class lawyers of the caliber of Shri Arun Jaitley and Shri P. Chidambaram who will answer this question in diametrically opposed ways. Argue the matter before the apex court, if necessary. It is certain that the government would have navigated a path through this issue with the best possible legal advice, fully prepared to defend its decisions in the Supreme Court. The Court itself would go by the precise wording of constitutional provisions. It would not be influenced or overawed by the momentousness of the issue before it. So if a deep legal flaw remains in the processing of this case, it has a splendid seventy year old record of autonomy of thought and independence of action. 2. More than the letter of the law, this was a political – in the sense of statesmanship, not partisanship – decision. Its correctness or otherwise will slowly become discernible as its effects and consequences play out in the Valley, even much beyond it.

    • Any one saying 370 was a contract between india and j&k is totally misleading cause any one with rudimentary knowledge of Constituion can claim that right in the first article itself India is described as ” Union of States ” unlike american constitution which used “federation of states ” which ambedkar clarified reason for using union is that India is not the result of agreement By the states and states have no freedom to secede from it . The country is one inegral whole. So this forms a part court’s basic structure doctrine and applies to equally every state and kashmir is no exception .

      Second reason i believe that article 370 start witg word ” Temporary ” where other articles granting special status to certain states like 371, 371A,B,C,D etc did not contain any such word . So clear manifestation that assembly never intended 370 to be Permanent .

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