Judicial History of Article 370: SC Rulings On Jammu & Kashmir Special Status

The special status of Jammu & Kashmir was accommodated in the Indian polity by the incorporation of Article 370 to the Indian Constitution and the Presidential Orders that ensued. These Presidential Orders, passed under clause 1(d) of Article 370, not only extended provision of the Constitution to the State but also modified their applicability to suit its special needs and peculiar circumstances. Since the passing of the Presidential Order of 1954, the pith and substance of Article 370 has been brought before the Supreme Court time and again to intepret its nature, character and applicability.

The matters started coming to the apex court as early as 1955, when in Puranlal Lakhanpal v. President of India the court's writ jurisdiction was invoked to interpret the word 'modification' in Article 370(1)(d). The court interpreted the aforesaid term in a wider sense and said that the word 'modification' would also include President's power to amend a constitutional provision in its application to Jammu & Kasmir. The apex court had opined that:

'The power to make exceptions implies that President can provide that a particluar provision of the Constitution would not apply to the State… It seems to us that when the Constitution used the word 'modification' in Artice 370(1), the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu & Kashmir'.

The Court added that 'modification' would include the powers to make 'radical transformations'.

", in the context of the Constitution we must give the widest effect to the meaning of the word "modification" used in Art. 370(1) and in that sense it includes an amendment. There is no reason to limit the word "modifications" as used in Art. 370(1) only to such modifications as do not make any "radical transformation", it observed.

The decision in Puranlal marked a beginning of what would later become a series of petitions filed before the apex court to challenge the constitutionality of the Preventive Detention Act of Jammu & Kashmir. When Article 35 was made applicable to the State it was modified to include clause (c) which made it clear that the laws regarding preventive detention in J&K cannot be challenged for being in violation of the fundamental rights guaranteed under the Constitution. Both in P.L Lakhanpal v. State of J&K (1956) and Abdul Ghani v. State of J&K (1970) habeas corpus petitions were filed before the Supreme Court to challenge the detentions made under the said Act; citing them to be in contravention of Part III of the Constitution. In both the cases, the validity of the Act was upheld by using President's powers under Article 370(1)(d) as a justification. The Petitioners were rendered without a remedy even if the Act purported to violate their Right under Article 21.

The controversial Preventive Detention Act was originally given a timeline of five years. However, its enforcement and validity was periodically extended for 15 and then 10 years by the Presidential Orders of 1959 and 1964. When in Sampat Prakash v. State of J&K (1970) this was challenged, the apex court denied relief to the Petitioner and opined that:

'... The power to modify in clause 1(d) of Article 370 also includes the power to subsequently vary, alter, add to or rescind such an order by reason of the applicability of the rule of interpretation laid down in Section 21 of General Clauses Act. If the Order of 1954 is not invalid on the ground of infringement or abridgement of fundamental rights under Part III, it is difficult to appreciate how extension of period of immunity made by subsequent amendments can be said to be invalid as constituting an infringement or abridgment of the provisions or part of it.'

In Sampat Prakash, the court also made a significant observation about the lifeline of Article 370 itself. It opined that the Article could only be removed only on the recommendation of the Constituent Assembly of the State. Since, the said Assembly made no such recommendation before it ceased to exist post 1957, it shows that it had no intention to ask for revocation of the said Article.

"Article 370(3) clearly envisages that the article will continue to be operative and can cease to be operative only if, on the recommendation of the Constituent Assembly of the State, the President makes a direction to that effect. In fact, no such recommendation was made by the Constituent Assembly of the State, nor was any Order made by the President declaring that the article shall cease to be operative. On the contrary, it appears that the Constituent Assembly of the State made a recommendation that the article should be operative with one modification to be incorporated in the Explanation to clause (1) of the Article. This makes it very clear that the Constituent Assembly of the State did not desire that this article should cease to be operative and, in fact, expressed its agreement to the continued operation of this article by making a recommendation that it should be operative with this modification only.", observed the SC in Sampath Prakash.

Despite the observations made in Sampat Prakash, the Supreme Court in Mohd Maqbool Damnoo (1972) and then in SBI v. Santosh Gupta (2017) went to interpret the provision in such a way that it paved a way for possible inroads to modify the constitutional status of the State. In Mohd Maqbool, the court upheld the validity of 1965 Presidential Order, which inserted clauses in Article 367(4) to state that references to 'Sadar-I-Riyasat' should be read as 'Governor' and went on to opine that Governor is competent to give concurrence on behalf of the State Government which is stipulated in Article 370 and for other functions laid down in the J&K Constitution.

The Constitution Bench did not accept the argument of the petitioner that it was an 'amendment by back door' to Article 370. The Court said that the explanation was necessary as "Sadar-i-Riyasat' for the state no longer existed and said that the modification merely reflected the existing Constitutional position. Therefore, there was no need for  expressing any opinion of whether Article 370 could be amended by using Article 370(3),the Court said.

"We are not concerned with the question whether Art.370 (3)can now be utilised to amend the provisions of Art.370 (1) and (2) and therefore we do not express any opinion on that point. We are now not concerned with an amendment of Art.370 (1). We are concerned with the situation where the explanation ceased to operate. It had ceased to operate bacause there is no longer any Sadar i Riyasat of Jammu and Kashmir", the bench said.

Further, in SBI v. Santosh Gupta, while holding that SARFAESI Act was applicable to J&K, the court highlighted that the state has no vestige of sovereignty outside the Constitution of India and its own Constitution, which is subordinate to the Constitution of India.

"Art.1 of the Constitution of India and S.3 of the Jammu & Kashmir Constitution make it clear that India shall be a Union of States, and that the State of Jammu & Kashmir is and shall be an integral part of the Union of India", the apex court observed. The residents of Jammu & Kashmir are first and foremost citizens of India, added the Court. 

The bench of Justices Kurian Joseph and R F Nariman held that after the 1954 Presidential Order and the other orders following it, the Parliament did not need concurrence of the State Government to legislate in respect of matter contained in Union and Concurrent list in the Schedule 7 of the Constitution.  All entries specified by the 1954 Order contained in List I of the 7th Schedule to the Constitution of India would clothe Parliament with exclusive jurisdiction to make laws in relation to the subject matters set out in those entries.

"It has been argued that Parliamentary legislation would also need the concurrence of the State Government before it can apply to the State of Jammu & Kashmir under Art.370. This is a complete misreading of Art.370 which makes it clear that once a matter in either the Union List or the Concurrent List is specified by a Presidential Order, no further concurrence is needed.", the bench observed.

The present government has used the Presidential power under Article 370(1)(d) to amend Article 367 and made the Constituent Assembly of the State synonymous with the Legislative Assembly. Moreover, the concurrence for the same has not been sought from the elected Legislative Assembly but from the Governor of the State. These interpretive changes to make the Governor synonymous with the State Government has been routed through Clause 1(d) of Article 370.

As petitions have already been moved before the Supreme Court to challenge the revocation of the Special Status of the State of Jammu and Kashmir, the question before the apex court would be whether to follow the policy of non-interference with Presidential Orders, as it has done in the past, or to finally put its merits up for the constitutional scrutiny.