Supreme Court's verdict on the abrogation of Article 370

 

             On 11 December 2023, a Constitution Bench of the Supreme Court unanimously upheld the power of the president to abrogate Article 370 of the Constitution, which in August 2019 led to the reorganization of the state of Jammu and Kashmir (J&K) into Union Territories and denuded it of its special privileges. It reasoned that Article 370 was only a ‘temporary provision’ to ease the accession of the then princely state to the union at a time of internal strife and war.

What Petitioners Argued---

       The petitioners, represented by a battery of senior lawyers including Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Dushyant Dave, and Gopal Sankaranarayanan, said the Union used brute majority in Parliament and issued a series of executive orders through the President to divide a full-fledged State into the Union Territories of Jammu and Kashmir and Ladakh. They called it an attack on federalism and a fraud played on the Constitution.

     The petitioners had argued that Article 370 had assumed a permanent character as soon as the Jammu and Kashmir Constituent Assembly dissolved in 1957 after the framing of the State Constitution. Mr. Sihal said Article 368 (Parliament's power to amend the constitution) did not apply to Article 370.

What did the court say?

● Jammu and Kashmir does not have any ‘internal sovereignty’ different from other states and its status under Article 370 is only a form of asymmetric federalism.

● From its historical context, it is clear that Article 370 is only a temporary provision. 

● The President, in exercise of power under Article 370(3), can unilaterally issue a notification that Article 370 ceases to exist.

● When the Constituent Assembly was dissolved, it did not affect the President's power to declare it inoperative.

Background of Article 370-

      Article 370 was the basis of Jammu and Kashmir’s accession to the Indian Union at a time when erstwhile princely states had the choice to join either India or Pakistan after their independence from British rule in 1947. The article, which came into effect in 1949, exempts Jammu and Kashmir state from the Indian constitution. It allows the

Indian-administered region jurisdiction to make its laws in all matters except finance, defense, foreign affairs, and communications.

It established a separate constitution and a separate flag and denied property rights in the region to outsiders. That means the residents of the state live under different laws from the rest of the country in matters such as property ownership and citizenship.

How did the Government repeal, why and what was the impact of Article 370 abrogation -

         In 1954, the Constitutional Application Order 1950 was renamed as the Constitutional Application 1954 and its issuance was the first infringement on the constitutional autonomy of the State of J&K. It culminated with the issuance of the constitution(Application of J&K) order, 2019. On 5th and 6th August 2019 concurrent resolutions were passed by both the Lok Sabha and the Rajya Sabha respectively. These resolutions revoked the remaining provisions of Article 370 and replaced them with new provisions. On 5th August 2019, Jammu and Kashmir Reorganization Act 2019, was passed by parliament. This act bifurcated the state of Jammu and Kashmir into two Union Territories: Jammu and Kashmir and Ladakh.

       It was felt that Article 370 created a lack of transparency and accountability in the governance and discriminated against women, Dalits, and other marginalized groups in Jammu and Kashmir. The abrogation would bring them under the umbrella of Indian laws and provide them with equal rights and opportunities.

This article hindered economic development and the complete integration of Jammu and Kashmir into the Indian Union. The abrogation would allow for greater investment, tourism, better access to resources, infrastructure and job opportunities for the people of J&K and also strengthen national security by allowing the Indian government to have more control over the region and crack down on terrorist activities.

Conclusion-

          Article 370 hindered the complete integration of Jammu and Kashmir into the Indian Union, creating a sense of separatism and impeding its development. The recent judgment by the five senior judges of the Supreme Court upheld the union government's action to abrogate Article 370, which granted special status to Jammu and Kashmir. This decision showcases the court's commitment to strengthening the fabric of our nation and reinforcing the values that define us as a society. It is a testament to the collective resolve to build a stronger, more United India.






Team Yuva Aaveg-
Praveen Kumar Maurya

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