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A Constitution Bench of the Supreme Court on December 11 unanimously upheld the power of the President to abrogate Article 370, a decision that was taken in August 2019, which led to the reorganisation of the full-fledged State of Jammu and Kashmir into two Union Territories while denuding the State of its special rights and privileges.
The Court held that Article 370 was meant to be a “temporary provision”, to be removed once the constitutional integration of J&K with India was complete. The Court also held that the President of India is authorised to abrogate Article 370 of his/her own accord and found no procedural fault in how Article 370 was abrogated.
Chief Justice of India D. Y. Chandrachud’s majority opinion emphasised that the State of J&K had no “internal sovereignty”. The State of J&K never had internal sovereignty distinguishable from the powers and privileges enjoyed by other Indian States, the CJI argued. He compared the special status accorded to J&K through Article 370 with the special provisions for other Indian States contained in the Constitution in its Part 21 titled “Temporary, Transitional and Special Provisions”, describing these as features of “asymmetric federalism” in India.
The Court maintained that the carving out of the UT of Ladakh from J&K was permissible under Article 3 of the Constitution. However, the judgement did not deal with the question of whether the Union Government could unilaterally convert a State into a UT, as it did with J&K The judgement also did not engage with the challenge to statehood being taken away from J&K in 2019 because of the Union Government’s assurance in the Court that the loss of statehood is temporary it would eventually be restored.
Justice Sanjay Kishan Kaul recommended setting up a ‘Truth and Reconciliation Commission’ to investigate and report on the violation of human rights by the State and the non-State actors perpetrated in J&K since the 1980s and recommend measures for reconciliation.
What is the importance of Article 370?
Article 370 was a “temporary provision” in the Constitution that granted special autonomous status to J&K. Under Part XXI of the Constitution titled ‘Temporary, Transitional and Special Provisions’, the state of J&K was given special status under Article 370. All the provisions of the Constitution that apply to other States were not automatically applicable to J&K.
Article 370 embodied six special provisions for J&K. It exempted the State from complete applicability of the Constitution. The State was conferred the power to have its own Constitution. Central legislative powers over the State were limited to Defence, Foreign Affairs and Communications.
What did the NDA government do in 2019?
In August 2019, Parliament passed two statutory resolutions. Through one resolution, Parliament passed the public notification issued by the President, scrapping Article 370. The resolution read: “In exercise of the powers conferred by Clause (3) of Article 370 of the Constitution of India, the President, on the recommendation of Parliament, is pleased to declare that as on 5th of August, 2019, all clauses of the said Article 370 shall cease to be operative except Clause (1) thereof…”
By the second resolution, the State was bifurcated into two separate UTs, Ladakh, without a Legislative Assembly and J&K, with a Legislative Assembly with curtailed powers. This resolution said: “The Ladakh division of the State of Jammu and Kashmir has a large area but is sparsely populated with a very difficult terrain. There has been a long pending demand of the people of Ladakh to give it the status of Union Territories to enable them to realise their aspirations. The Union Territory of Ladakh will be without Legislature,” said the statement of the object for reorganisation of the State.”
“Further, keeping in view the prevailing internal security situation, fuelled by cross-border terrorism in the existing State of Jammu and Kashmir, a separate Union Territory for Jammu and Kashmir is being created. The Union Territory of Jammu and Kashmir will be with legislature,” the resolution said..
Article 35A, which was not a part of the original Constitution but was added to its appendices as a by-product of Article 370, empowered the State legislature to define the State’s “permanent residents” and their special rights and privileges, including property. This Article, too was scrapped along with Article 370
Why did some sections of society oppose the abrogation of Article 370?
The petitioners’ case against the scrapping of Article 370 falls into broadly two categories. One, they have challenged the constitutionality of the presidential order about scrapping of Article 370. Two, they have challenged the bifurcation of the State into two union territories – J&K and Ladakh. Both these orders by the President had been passed by Parliament.
The petitioners argued that the scrapping of Article 370 was done without the concurrence of the J&K Legislative Assembly.
They contended that the J&K Reorganisation Act 2019 was unconstitutional, arguing that: “Article 3 does not give Parliament powers to downgrade federal democratic states into a less representative form such as a Union Territory”.
What does the Supreme Court ruling mean for the residents of Jammu and Kashmir?
Ninety-four out of 97 entries in the Union List applied to Jammu and Kashmir, 260 out of the 395 Articles of the Constitution, as 7 out of the 12 Schedules of the Indian Constitution were extended to the state before the Article 370 was scrapped in August 2019.
In effect, the Constitutional scheme was already in operation in J&K. In tangible terms, what has been taken away are the special privileges that include property rights only to the erstwhile State residents.
Another major departure from the earlier scheme has been the loss of statehood to J&K. The ball is now in the Centre’s court to re-establish statehood and conduct elections. With this, the citizens of the State are expected to get a representative form of government and all the benefits that accrue from a democratically elected government.
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