Article 370
About
- The first article of Part XXI of the Constitution, titled “Temporary, Transitional and Special Provisions,” is Article 370.
- It allows J&K to create its own constitution and spares the state from the provisions of the Indian Constitution (apart from Article 370 and Article 1).
- It limits Parliament’s ability to enact laws pertaining to J&K and requires only “consultation” with the state government in order to expand a central law on topics covered by the Instrument of Accession (IoA).
Abrogation of Article 370
- The Indian government repealed almost all of Article 370 of the Indian Constitution on August 5, 2019.
- The President proclaimed The Constitution (Application to Jammu and Kashmir) Order, 2019 on August 5.
- This order changed Article 370(3)’s reference to the “Constituent Assembly” to the “Legislative Assembly [of Jammu & Kashmir].”
- Using Article 370(1), the Order modified Article 367’s interpretation clause rather than Article 370 itself.
Later, the Rajya Sabha introduced a Statutory Resolution that essentially repealed Article 370. - Because the State was ruled by the President, this was accomplished without the approval of the Jammu & Kashmir Legislative Assembly.
- The Jammu and Kashmir Reorganisation Bill, 2019, which divides the State into Jammu & Kashmir and Ladakh Union Territories, was approved by Parliament on August 6.
- A legislative assembly is given to the former.
Background of the current judgement
- Following the revocation of Article 370, numerous petitions were submitted.
- On August 28, 2019, the Supreme Court decided to consider several petitions contesting the repeal of Article 370 and the division of Jammu and Kashmir into two Union Territories.
- For the same, a five-judge bench was formed.
News Summary: Article 370 abrogation upheld
- The Union government’s 2019 attempt to amend Article 370 of the Constitution was decided upon by the Supreme Court.
- The court upheld the constitutional order that revoked Article 370 as valid. o The abrogation ended the special status granted to the former state of Jammu and Kashmir.
Key highlights of the judgement
- Regarding the “special status” and “uniqueness” of Jammu & Kashmir
- The Supreme Court ruled that, following its 1947 accession to India, J&K did not maintain any degree of sovereignty.
- The princely state’s former ruler, Maharaja Hari Singh, declared that he would hold onto his sovereignty, but the court disagreed.
- Nevertheless, Karan Singh, his successor, declared once more that the Indian Constitution would take precedence over all other state laws.
- Yuvraj Karan Singh issued a proclamation for the State of Jammu and Kashmir on November 25, 1949.
- It declared the repeal of the Government of India Act, 1935, which up until that point had regulated the constitutional relationship between J&K and the Indian dominion.
- It also said that J&K will be governed by the Indian Constitution, which will soon be ratified by the Constituent Assembly of India.
- The court decided that this had the same effect as a merger as any other princely state that joined India.
- Kashmir has always been an essential component of India
- In addition to Article 1 and 370 of the Indian Constitution, CJI Chandrachud cited Section 3 of the J&K Constitution.
- The State of Jammu and Kashmir “is and shall be an integral part of the Union of India,” according to Article 3 of the J&K Constitution.
- Not having a constitution of its own does not confer any special status either.
- The goal of Article 370 was to integrate the state with India, while the goal of the J&K Constitution was to guarantee daily governance in the state.
- Regarding the restoration of statehood, the court ruled that the former state’s 2019 transformation into Union Territories was only a temporary measure.
- As a result, it gave the Center instructions to hold elections for the Legislative Assembly and to restore statehood.
- Article 370: A provision that is either temporary or permanent
- The Supreme Court ruled that Article 370 is a provision meant to be temporary and transitional.
- According to the court, the temporary provision had a purpose in the state’s warlike conditions in 1947.
- The August 2019 presidential proclamations were upheld by the Supreme Court on the issues concerning the effective abrogation of Article 370.
- The legality of the two Presidential proclamations in 2019 that effectively revoked Article 370 was to be decided by the court.
- The proclamation that reinterpreted the term “constituent assembly of Jammu and Kashmir” to refer to the “Legislative Assembly of Jammu and Kashmir” was upheld by the Court.
- The main question was whether the Union could act in this way, taking on the state’s authority while the President is in office.
- The Supreme Court cited the seminal decision in “SR Bommai v Union of India” from 1994 in this instance.
- This case concerned the Governor’s authority and restrictions while operating under the President’s administration.
- The Supreme Court ruled in the Bommai case that the Governor may take on “all or any” of the functions of the state legislature.
- The Supreme Court held, citing an interpretation of the Bommai ruling, that there is no prima facie evidence linking the President’s orders to an improper or superfluous use of authority.
Truth and Reconciliation Commission
- According to Justice Sanjay Kaul, it is advised to establish a Truth and Reconciliation Commission to investigate claims of human rights breaches in J&K by state and non-state actors.
- The commission serves as an official channel for disclosing government misconduct and allowing historical disputes to be discussed and settled.