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Supreme Court verdict on Article 370 Abrogation

GS II >> Polity >> Constitutional Provisions

Context: A Constitution Bench, led by CJI DY Chandrachud, delivered the verdict on challenges to the abrogation of Article 370 by the Central government in 2019.

• The verdict addresses a historical and contentious issue related to the special status of Jammu and Kashmir, its accession to India, and the subsequent abrogation of Article 370.

Brief introduction about Article 370:

• Introduction (1949):
• Temporary provision: Added to the Indian constitution on October 17, 1949, as a temporary measure.
• Special status: Granted Jammu & Kashmir the authority to draft its own Constitution, limiting the legislative powers of the Indian Parliament.
• Origins and Inclusion:
• Drafting by N Gopalaswami Ayyangar: Included as Article 306 A in the draft constitution.
• Empowered J&K Constituent Assembly: Granted authority to recommend the from the Indian Constitution to the state.
• Scope and Powers:
• Constituent Assembly’s role: Empowered the J&K Constituent Assembly to decide which Indian Constitution articles would be applicable.
• Presidential power: Article 370, clause 3, gave the President the authority to amend its provisions.
• Article 35A (1954):
• Presidential order: Introduced through a Presidential Order in 1954, based on the J&K Constituent Assembly’s recommendation.
• Special provisions: Empowered the J&K legislature to define permanent residents and grant special rights and privileges.
• Modification in 2019:
• Constitution (Application to Jammu and Kashmir) Order, 2019: Issued by the President of India on August 5, 2019.
• Focused changes: Modified Article 370 itself, not a revocation.
• Government action: Empowered the Government of India to make specific adjustments in the application of Article 370.

Petitioners’ arguments against Article 370 abrogation:

• Article 370 is permanent: Became permanent after the Constituent Assembly dissolved in 1957 and cannot be repealed without its recommendation.
• Colourable exercise of power: Article 370 repealed indirectly by amending Article 368, substituting ‘Constituent Assembly’ with ‘Legislative Assembly.’
• Implied restrictions during President’s Rule: Proclamation suspending the Legislative Assembly implies restrictions on Article 370(3).
• Misuse of power of Article 3: Central government’s powers under Article 3 cannot change a state into a Union Territory without state consent.
• Absence of merger agreement: No merger agreement executed and J&K chose to be with India under Article 370’s constitutional promise.

Union Government arguments for Article 370 abrogation:

• No special status: J&K had no special status from the beginning; the draft accession agreement was the same for all princely states.
• End of psychological duality: Abrogation ended psychological duality, granting fundamental rights to a larger population.
• Self-extinguishing legislation: Article 370 was not a privilege and could be taken away; it was a self-extinguishing legislation.
• Parliamentary role in President’s Rule: During President’s rule, Parliament exercises the role of the state legislature, applicable to all states.
• Justified abrogation: Done to counter consistent challenges, not a knee-jerk decision; policy considerations involved.
• Temporary Union Territory status: J&K as a Union Territory is temporary; statehood will be restored over time, while Ladakh remains a Union Territory.
• End of integration purpose: Article 370’s purpose for national integration in J&K was over and making it permanent is unconstitutional.
• Federalism and Basic Structure: Federalism is part of the Constitution’s basic structure, but Article 370 has no place and making it permanent violates the Constitution.
• Sovereignty with Union Government: Legal sovereignty rests with the Union government and Article 370 can be removed without restrictions.

Key highlights of Supreme Court’s verdict:

• Sovereignty of Jammu and Kashmir:
• The court ruled that J&K did not retain any sovereignty after accession to India in 1947.
• Despite the erstwhile ruler’s proclamation, subsequent proclamations affirmed integration, akin to other princely states.
• CJI DY Chandrachud said that Jammu and Kashmir held no internal sovereignty after accession to India. He said there was no prima facie case that the President’s 2019 were mala file or extraneous exercise of power.
• Temporary nature of Article 370: The court held Article 370 as a temporary, transitional provision based on historical context and its placement in Part XXI of the Constitution.
• Abrogation of Article 370: Upheld both presidential proclamations of August 2019, justifying the abrogation to counter persistent challenges, particularly from Pakistan.
• The court referred to the 1994 ‘S R Bommai v Union of India’ ruling to validate the President’s actions during President’s rule.
• Restoration of statehood: The Centre was directed to restore statehood, and Legislative Assembly elections were recommended to be held.

Challenges in implementing Supreme Court’s verdict:

• Implementation hurdles: Executing the restoration of statehood and organizing elections might face logistical and administrative challenges, requiring careful planning and execution.
• Political and social reintegration: Reintegrating Jammu and Kashmir politically and socially into the Union, post the Article 370 abrogation, may encounter resistance and necessitate comprehensive strategies for inclusion.
• Security concerns: The region has experienced security concerns, and the restoration process must consider maintaining law and order while ensuring the safety of the residents.
• Truth and Reconciliation Commission challenges: Establishing a Truth and Reconciliation Commission involves navigating complex issues, including obtaining cooperation, ensuring impartiality.

Recommendations of Article 370’s Verdict:

• Restoration of statehood: The Supreme Court directed the Centre to restore statehood to Jammu and Kashmir. This recommendation aims to reinstate the region as a full-fledged state, indicating a move towards normalcy.
• Holding legislative assembly elections: The court recommended holding Legislative Assembly elections in Jammu and Kashmir Conducting elections is a crucial step in re-establishing democratic governance and representation in the region.
• Truth and Reconciliation Commission: Justice Kaul suggested the creation of a Truth and Reconciliation Commission in Jammu and Kashmir.
• This commission aims to address and acknowledge alleged violations committed by the State and its actors, promoting transparency and accountability.
• Acknowledgment of internal sovereignty loss: CJI DY Chandrachud emphasized that Jammu and Kashmir held no internal sovereignty after accession to India.

Way forward:

• Implementation roadmap: Develop a comprehensive and detailed roadmap for the restoration of statehood and the conduct of Legislative Assembly elections in Jammu and Kashmir.
• Stakeholder consultation: Engage in meaningful consultations with various stakeholders, including political representatives, local communities, and civil society, to address concerns and ensure inclusive decision-making.
• Security and law enforcement: Prioritize security measures to maintain law and order during the transition process. Collaborate with law enforcement agencies to address any potential challenges and ensure the safety of residents.
• Constitutional and legal reforms: Undertake necessary constitutional and legal reforms to facilitate the restoration of statehood in compliance with the Supreme Court’s directives. Ensure that the legal framework aligns with the evolving political status of Jammu and Kashmir.
• Electoral preparedness: Work towards creating an environment conducive to free and fair Legislative Assembly elections. Facilitate the functioning of election-related institutions and ensure the active participation of political parties and candidates.

Source: www.thehindu.com