9/9/2019 Judicial History of Article 370: SC Rulings On Jammu & Kashmir Special Status

Judicial History of Article 370: SC Rulings On Jammu &

Kashmir Special Status
BY: KARAN TRIPATHI
17 Aug 2019 9:03 PM

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'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' : SC in SBI v Santosh Gupta (2017).
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
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9/9/2019 Judicial History of Article 370: SC Rulings On Jammu & Kashmir Special Status

their applicability to suit its special needs and peculiar circumstances. Since the
passing of the Presidential Order of 1954, the Ad
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and substance of Article 370 has
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been brought before the Supreme Court
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character and applicability.

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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:

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'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.

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9/9/2019 Judicial History of Article 370: SC Rulings On Jammu & Kashmir Special Status

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.
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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.'

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9/9/2019 Judicial History of Article 370: SC Rulings On Jammu & Kashmir Special Status

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
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continued operation of this article by making a recommendation that it should be
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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
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9/9/2019 Judicial History of Article 370: SC Rulings On Jammu & Kashmir Special Status

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
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make it clear that India shall be a Union of States, and that the State of Jammu &
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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
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9/9/2019 Judicial History of Article 370: SC Rulings On Jammu & Kashmir Special Status

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.

Topics : Article 370 | Special Status Of Jammu And Kashmir | Jammu and
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Kashmir | Puranlal Lakhanpal v. President of India | P.L Lakhanpal v. State of
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J&K | Abdul Ghani v. State of J&K | Sampat Prakash v. State of J&K

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