"Supreme Court Upholds the Abrogation of Articles 370 and 35A - A New Era for Jammu and Kashmir"
On December 11, Chief Justice D.Y. Chandrachud led a unanimous decision by a five-member Constitution bench of the Supreme Court, upholding the abrogation of Articles 370 and 35A. The court declared Article 370 temporary, confirming Jammu and Kashmir's lack of internal sovereignty and directing swift statehood restoration with assembly elections by September 30, 2024. It affirmed Ladakh's status as a Union Territory, the President's authority to revoke Article 370, and upheld Constitution Order 272, which integrated Jammu and Kashmir fully into the Indian Constitution post-1947 Accession.
Introduction:
On August 5th and 6th, 2019, the Indian government made a decisive move by repealing Article 370, significantly altering Jammu and Kashmir's status.
Understanding Article 370:
Article 370, a temporary provision in the Indian Constitution, allowed the Constituent Assembly of Jammu and Kashmir the choice to modify, retain, or delete it.
Positioned as the initial article in the Constitution's Part XXI, titled 'Temporary, Transitional and Special Provisions,' it exempted Jammu and Kashmir from the full application of the Indian Constitution, barring Articles 1 and 370.
Introduced on October 17th, 1949, it accorded special status to the state, empowering it to have its own constitution, state flag, and internal administrative autonomy.
Historical Context of Article 370:
Jammu and Kashmir's accession to the Dominion of India in 1947, following Maharaja Hari Singh's signing of the Instrument of Accession, set the stage for Article 370.
The article limited the application of the Indian Constitution to J&K to Articles 1 and 370, with further extensions subject to Presidential consultation with the state government.
The Constitution Order of 1950 specified conditions under which the Indian Parliament could legislate on 38 matters from the Union List for Jammu & Kashmir.
Article 35A and Article 370:
Article 35A, derived from Article 370 and added in 1954, empowered the Jammu & Kashmir Legislature to define 'permanent residents' and regulate their rights and privileges.
It provided J&K the autonomy to restrict non-state settlement and property acquisition.
Amendment and Repeal Process:
The government employed Article 370's Clause 3 for amendment, circumventing the standard process in Article 368.
Revoking Article 35A equalized privileges for Jammu and Kashmir's residents with other Indian citizens.
The Jammu and Kashmir Reorganization Act of 2019 played a pivotal role in redefining the region's status.
The Abolition of Article 370:
The President's Constitution (Implementation to Jammu and Kashmir) Order, 2019, formally annulled Article 370.
This led to Jammu and Kashmir losing its dual citizenship status, subjecting it to all Indian Parliament's legislative amendments.
The full integration of Jammu and Kashmir under the Indian Constitution marked its complete assimilation into the national framework.
Distinctive Features of Jammu and Kashmir's Special Status Under Article 370:
Independent Constitution: Jammu and Kashmir had its own Constitution, distinct from the Indian Constitution.
Dual Citizenship: The region recognized 'dual citizenship,' with individuals being citizens of both Jammu and Kashmir and India.
Legislative Supremacy: Jammu and Kashmir's Legislature had authority over residuary powers, unlike other Indian states where Parliament had jurisdiction.
Conditional Parliamentary Approval: For laws outside defense, foreign affairs, finance, and communications, the Indian Parliament required the state government's consent.
Automatic Extension in National Emergency: During national emergencies due to war or external aggression, laws automatically extended to Jammu and Kashmir.
Exclusion from Armed Rebellion Emergency: National emergencies declared due to armed rebellion did not automatically apply to Jammu and Kashmir.
Governor's Appointment Protocol: The Governor of Jammu and Kashmir was appointed following consultation with the state's Chief Minister.
Immunity from Financial Emergency: The state was exempt from Financial Emergency provisions under Article 360 of the Indian Constitution.
Exemption from Constitutional Principles: Directive Principles of State Policy and Fundamental Duties in the Constitution were not applicable to Jammu and Kashmir.
Governor's and President's Rule Dynamics: The state could be placed under Governor's rule for up to six months, in addition to the provision for President's rule.
Special Provisions in Preventive Detention: Laws related to preventive detention in Article 22 of the Indian Constitution were not automatically applicable to the State.
Parliamentary Approval for Territorial Changes: Any changes to the state's name, boundaries, or territory required Indian Parliament's approval with the State Legislature's concurrence.
Retention of Property Rights Provisions: Articles 19(i) (f) and 31 (2) of the Indian Constitution, related to the 'Right to Property,' continued to apply in Jammu and Kashmir.
Article 370, initially a temporary provision, was later deemed outdated and repealed. This step was significant in fully integrating Jammu and Kashmir into the Indian Constitution, symbolizing its complete assimilation as an integral part of India.
Legal Arguments Against the Removal of Article 370:
Constitutionality and Basic Structure Violation:The Supreme Court is tasked with evaluating whether the removal of Article 370 breaches the basic structure of the Constitution.
Article 370 as Part of Federalism:Being an integral component of the Indian Constitution, Article 370 is also seen as a crucial element of federalism, a key aspect of the Constitution's basic structure. The court has previously ratified Presidential Orders under Article 370.
Sampat Prakash Case (1969) Precedent:The Supreme Court in this case refuted the idea that Article 370 was a temporary provision. It stated, "Article 370 has never ceased to be operative," thus recognizing it as a permanent aspect of the Constitution.
Delhi High Court's Stance in Kumari Vijayalakshmi Case (2017):The Delhi High Court dismissed a challenge to Article 370's permanence, stating that its continuation does not constitute a fraud on the Constitution.
Legal Arguments for the Removal of Article 370:
Article 35A's Non-Constitutional Insertion: Article 35A, granting the J&K legislature the power to define permanent residents and their rights, was inserted not through the constitutional amendment process of Article 368 but via a Presidential Order recommended by the J&K Constituent Assembly. This process raises questions about its constitutional validity.
Waman Rao Case (1981) and Basic Structure Theory: Since Article 35A predates the basic structure doctrine established in 1973, as per the Waman Rao case, it is argued that this article should not be subject to scrutiny under the basic structure criterion. This stance supports the argument that its removal does not violate the Constitution's fundamental principles.
Concerns with Judiciary's Decision on Article 370:
No Local Input: The decision lacked input from Jammu and Kashmir's elected representatives.
Imbalance of Power: It created uneven federalism, changing the power balance between the state and central government.
President's Rule Issue: There's a risk of misusing the President's power to make Article 370 ineffective.
Change in Assembly's Role: The role of the J&K Constituent Assembly was replaced by the Legislative Assembly, altering the original process.
Unclear Timeline: The court didn't set a clear date for restoring Jammu and Kashmir's statehood.
State Status Reduced: Downgrading Jammu and Kashmir to a Union Territory went against certain constitutional principles.
Advantages of Eliminating Article 370:
Strengthened National Unity: Fosters unity and shared identity across India.
Unified Legal Framework: Establishes consistent legal framework throughout India.
Economic Growth and Jobs: Opens up economic opportunities and reduces crime rates.
Private Sector Development: Encourages private investment and industry growth.
Right to Education: Ensures access to quality education, especially for girls.
Cultural and Socio-Economic Integration: Facilitates exchange and interactions with the broader Indian population.
Increased Land Values: Offers economic gains for Kashmiris through land leasing.
Access to Government Opportunities: Opens up government employment opportunities for Kashmiris.
The abrogation of Article 370 brings notable benefits but also raises procedural concerns. Acknowledging the positive impacts, it's important to address the complexities and challenges faced by both state and non-state actors in Jammu and Kashmir.
