SC upholds abrogation of Article 370 (Special)

Recently, a five-member Constitution bench of the Supreme Court, headed by Chief Justice D.Y. Chandrachud, unanimously upheld the abrogation of Articles 370 and 35A, noting that Article 370 was a temporary provision and that the erstwhile State of Jammu and Kashmir had no internal sovereignty.

• Over the years, there were debates about the special status; with some arguing it impeded the state's integration with the rest of India.
• The Pulwama terror attack in February 2019, which resulted in the death of Indian security personnel, heightened security concerns in the region.
• There were calls for a stronger response to address security challenges.
• As an action taken in favour to this, On August 5, 2019, the Indian government, through a Presidential order, abrogated Article 370, effectively revoking the special status of Jammu and Kashmir.
• The state was also reorganized into two separate Union Territories –“Jammu & Kashmir and Ladakh.”

What was all Article 370 about?

• Article 370 of the Indian Constitution granted special autonomy to the region of Jammu and Kashmir.
• The article allowed the state to have its constitution, and its residents enjoyed certain privileges, including exclusive rights over land and property.
• Article 35A:Article 35A, inserted through a Presidential order in 1954, granted special rights and privileges to the residents of Jammu and Kashmir.
  • It allowed the state's legislature to define permanent residents and provided them with exclusive rights over jobs and property.

Why there was a need for such an Action?

• The government argued that the move aimed at integrating Jammu and Kashmir fully into the Indian Union and promoting development in the region.

Arguments and Questionnaire around Abrogation of Article 370:

• Legality and Constitutional Validity:
  • Was the revocation of Article 370 constitutional?
  • Did the government have the authority to make such a significant change through Presidential orders?
• Democratic Process:
  • Was the decision in line with democratic norms, considering the absence of an elected government in Jammu and Kashmir?
  • Should such a major decision be made without the consent of the people or their elected representatives?
• Federalism and State Autonomy:
  • Did the revocation undermine the principles of federalism?
  • How did the move impact the autonomy of Jammu and Kashmir in legislative matters?
• Historical Context:
  • Was there sufficient consideration of the historical context and the special status granted to Jammu and Kashmir?
  • Did the decision respect the agreements made during the state's accession to India?

About the Recent Verdict:

• On federalism and Sovereignty: In the apex court’s view, following the Instrument of Accession and the issuance of the Proclamation dated November 25, 1949, by which the Constitution of India was adopted, the State of Jammu and Kashmir did not retain any element of sovereignty.
  • Article 370 was a feature of asymmetric federalism and not sovereignty.
  • The Supreme Court has reserved its verdict on upholding Article 370 by the President and mentioned that, the President has power to abrogate Article 370 if “special circumstances warrant a special solution”.
• The Supreme Court also proclaimed that the concurrence of the State government was not required to apply the Indian Constitution to the State of Jammu and Kashmir.
• On President’s decision to abrogate Article 370, using the Article itself: It is pertinent to mention that when Jammu and Kashmir’s special status was revoked by a Presidential Order in August 2019, the erstwhile State was under President’s rule, and it has since been a source of debate whether irreversible decisions could be made in the absence of an elected Legislative Assembly.
  • The President in exercise of power under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist.
• So, concluding thoughts have highlighted that,”Every decision taken by the Centre on behalf of the state during Presidential rule can’t be challenged.”

Arguments/Answersgiven for ‘Abrogation of Article 370’:

• President’s sole authority:
  • The President did not have to secure the concurrence of the Government of the State or Union Government acting on behalf of the State Government under the second proviso to Article 370(1)(d) while applying all the provisions of the Constitution to Jammu and Kashmir because such an exercise of power has the same effect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the State Government was not required.
• Declared as a ‘Temporary Provision’:
  • The court held 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.
  • The power of the Parliament or the President to abrogate Article 370 did not cease to exist with the dissolution of the Constituent Assembly of Jammu and Kashmir in 1957.
• Power to abrogate Article 370 is not present for J & K Assembly:
  • Only the power of the J&K Constituent Assembly to recommend abrogation of Article 370 ceased to exist with its dissolution.
  • Also, the power of the President under Article 370 (3) to abrogate Article 370 had continued to prevail. As, when the Constituent Assembly dissolved, only the transitional power recognised in the proviso of Article 370(3), which empowered the Constituent Assembly to make its recommendations, ceased to exist. It did not affect the power held by the President under Article 370 (3).

Arguments in favour of Article 370:

• Geographical Differences: Views may differ between regions such as Jammu, Kashmir, and Ladakh, with each having distinct demographic and cultural characteristics.
• Ethnic and Religious Diversity: The opinions of different ethnic and religious communities, including Hindus, Muslims, and Buddhists, may vary based on their historical experiences and perceptions.
• Political Affiliations: People's political affiliations, whether aligned with mainstream political parties or separatist groups, strongly influence their stance on the abrogation.

It's important to recognize that opinions within Jammu and Kashmir are diverse, and there is no single, unified solution for the issue in the region. The region has a long history of complex geopolitical and socio-cultural dynamics, contributing to a multiplicity of viewpoints.