Introduction
The abrogation of Article 370 of the Constitution of India on 5 August 2019 marked one of the most consequential constitutional developments in Indian history. The decision fundamentally altered the constitutional relationship between the Union of India and the erstwhile State of Jammu and Kashmir. While the Union Government defended the move as a step toward integration and development, critics described it as a constitutional subversion executed through procedural manipulation.
The controversy surrounding Article 370 is not merely political. At its core lies a complex constitutional debate involving federalism, constituent power, presidential authority, democratic consent, and constitutional morality. This article examines whether the abrogation of Article 370 can be understood as a legitimate constitutional exercise or whether it amounted to what many have described as a “constitutional coup.”
Historical Background of Article 370
Article 370 did not emerge as a temporary anomaly but as a product of historical and political realities following the partition of India in 1947. Jammu and Kashmir acceded to India under exceptional circumstances, retaining a significant degree of autonomy as reflected in the Instrument of Accession.
Unlike other princely states, Jammu and Kashmir acceded only on matters of defence, external affairs, and communications. Article 370 was incorporated to constitutionally recognize this limited accession and to provide a framework through which further constitutional integration could occur with the concurrence of the State.
The provision was introduced as a temporary arrangement, but its operation was conditioned on democratic consent and constitutional procedure, not unilateral executive action.
Constitutional Scheme of Article 370
Article 370 formed part of Part XXI of the Constitution, which deals with temporary, transitional, and special provisions. It restricted the automatic application of the Indian Constitution to Jammu and Kashmir and required presidential orders, issued with the concurrence or consultation of the State Government, to extend constitutional provisions to the State.
Crucially, Article 370(3) empowered the President to declare the Article inoperative, but only upon the recommendation of the Constituent Assembly of Jammu and Kashmir. This requirement was not incidental; it reflected the principle that the autonomy granted could not be withdrawn without representative consent.
The Constituent Assembly of Jammu and Kashmir dissolved in 1957 without recommending abrogation, giving rise to the long-standing debate on whether Article 370 had become permanent in effect.
Status of Article 370 after Dissolution of the Constituent Assembly
One of the central constitutional questions is whether Article 370 could be abrogated after the dissolution of the State’s Constituent Assembly. Judicial interpretation prior to 2019 suggested that Article 370 continued to operate as a permanent provision unless the constitutional condition for its removal was satisfied.
In State Bank of India v. Santosh Gupta, the Supreme Court observed that Article 370 had acquired a permanent character due to the non-existence of the Constituent Assembly. This interpretation strengthened the argument that unilateral abrogation was constitutionally impermissible.
Thus, the legal position before 2019 leaned strongly toward the view that Article 370 could not be dismantled without a constitutionally equivalent representative body.
Events Leading to the Abrogation in 2019
In August 2019, the Union Government undertook a series of coordinated constitutional steps. First, a Presidential Order under Article 370(1) was issued, applying all provisions of the Indian Constitution to Jammu and Kashmir and redefining the term “Constituent Assembly” to mean the “Legislative Assembly” of the State.
At the time, Jammu and Kashmir was under President’s Rule under Article 356, and no elected Legislative Assembly was in existence. Parliament was exercising the powers of the State Legislature.
Subsequently, a resolution was passed in Parliament recommending the abrogation of Article 370, followed by another Presidential Order declaring the provision inoperative.
Use of Article 356 and President’s Rule
The invocation of President’s Rule played a decisive role in the abrogation process. By placing the State under central administration, the Union effectively assumed legislative authority over Jammu and Kashmir.
This raised serious constitutional concerns. Article 356 is intended as an emergency provision to restore constitutional machinery, not as a mechanism to permanently alter the constitutional status of a State. Critics argue that using President’s Rule to eliminate a State’s autonomy amounts to an abuse of constitutional power.
The substitution of representative consent with parliamentary approval under President’s Rule forms one of the strongest grounds for challenging the legality of the abrogation.
Reinterpretation of “Constituent Assembly”
Perhaps the most controversial aspect of the abrogation was the reinterpretation of the term “Constituent Assembly” through a Presidential Order. By redefining it to mean the Legislative Assembly, and then treating Parliament as a proxy for that Assembly, the Union created a circular constitutional mechanism.
This maneuver effectively allowed the Union to recommend to itself the abrogation of Article 370. Critics argue that such an interpretation defeats the very purpose of constitutional safeguards and undermines the doctrine of limited government.
From a constitutional standpoint, altering the meaning of a core term to bypass a substantive limitation raises serious concerns about constitutional integrity.
Federalism and the Basic Structure Doctrine
Federalism is a recognized component of the basic structure of the Constitution. Article 370 represented an asymmetric federal arrangement tailored to the historical context of Jammu and Kashmir.
The abrogation significantly altered this arrangement without the consent of the State’s people or their elected representatives. This raises the question of whether the move violated the basic structure by eroding federal principles and democratic participation.
The Supreme Court has consistently held that even constitutional amendments cannot destroy the basic structure. Executive action, therefore, stands on even weaker footing when it produces such far-reaching constitutional consequences.
Democratic Consent and Constitutional Morality
Another critical issue concerns the absence of democratic consent. At the time of abrogation, Jammu and Kashmir had no functioning Legislative Assembly. The people most affected by the decision had no institutional voice in the process.
Constitutional morality requires that constitutional powers be exercised in a manner consistent with democratic values, not merely formal legality. The exclusion of representative participation raises questions about the legitimacy of the process, irrespective of its procedural framing.
The argument that development and integration justify constitutional shortcuts sits uneasily with the principles underlying a democratic constitution.
Judicial Review and Pending Challenges
Multiple petitions challenging the abrogation of Article 370 were filed before the Supreme Court. These petitions raised issues relating to constitutional interpretation, misuse of presidential power, federalism, and democratic rights.
The judiciary’s role in adjudicating these challenges is crucial. The outcome has implications not only for Jammu and Kashmir but also for the future of constitutional governance and Centre-State relations in India.
Judicial review in this context is not about political disagreement but about preserving constitutional boundaries.
Was It a Constitutional Coup?
The term “constitutional coup” is used to describe situations where constitutional mechanisms are employed to achieve outcomes that undermine constitutional principles. The abrogation of Article 370 followed formal procedures, but critics argue that the substance of those procedures was hollowed out through reinterpretation and executive dominance.
The concentration of power, elimination of consent, and permanent alteration of a State’s status through temporary emergency provisions together form the basis of the “constitutional coup” argument.
Supporters, however, maintain that Parliament acted within its sovereign authority and that the Constitution permits such transformation.
Conclusion
The abrogation of Article 370 represents a defining moment in Indian constitutional history. Whether it is ultimately upheld or struck down, it has already reshaped constitutional discourse on federalism, executive power, and democratic consent.
The deeper concern is not limited to Jammu and Kashmir but extends to the precedent set for altering constitutional arrangements through executive ingenuity. The Constitution’s endurance depends not only on what it permits but on how its powers are exercised.
The final word on whether the abrogation was a legitimate constitutional reform or a constitutional coup lies with judicial interpretation and historical judgment. What is certain is that Article 370 will continue to occupy a central place in debates on constitutional governance in India.
