Supreme Court Verdict On Article 370 Revocation

Introduction

Regarding the Union government’s 2019 attempt to change Article 370 of the Constitution, the Supreme Court has rendered a decision. The former state of Jammu and Kashmir’s unique status was terminated by the abrogation. The court upheld the validity of the Constitutional decree that revoked Article 370.

What is the Recent Judgement Supreme Court?

• Jammu and Kashmir did not Possess Sovereignty
  • The Supreme Court said that there is ample evidence in Article 370 and the J&K Constitution to demonstrate that Kashmir does not need to give up its sovereignty to enter into a merger deal.
  • J&K was classified as a Part III State under Article 1 of the Indian Constitution, and Article 370(1) enforced that provision without alteration.
  • The State of Jammu and Kashmir “is and shall be an integral part of the Union of India,” as stated specifically in Section 3 of the J&K Constitution.
  • Section 3 of the Indian constitution is absolute and cannot be amended, as stated in Section 147.
  • As a result, the Court declared that the Indian Constitution “became the supreme governing document of the land.” Moreover, the J&K Constitution’s Preamble demonstrates a “clear absence of…a reference to sovereignty.”
• Article 370 is a Temporary Provision
  • The SC based its decision on the fact that the transitory and transitional provisions found in Part XXI were positioned beside Article 370 by the authors of the Constitution.
  • Subsequently, it was highlighted that Article 1 of the Instrument of Accession (IoA) applied to J&K in its entirety, as it was “abundantly clear” that “India that is Bharat shall be a Union of States.”
• Constitutional Validity of Proclamations Under President’s Rule
  • The Supreme Court’s Bench agreed that the President may enact “irreversible changes, including the dissolution of the State Assembly,” but that “judicial and constitutional scrutiny” serves as a check on the President’s authority.
• The Constitution of J&K Stands Inoperative
  • The court ruled that the existence of the J&K Constitution, which limited the applicability of some Indian Constitutional articles to J&K, is no longer essential.
  • The State of Jammu and Kashmir’s Constitution is rendered inoperative as a necessary but implicit result of applying the Indian Constitution in its entirety to the state.
• Set up a Truth and Reconciliation Commission to Address Human Rights
  • The SC suggested that the Union establish a “truth and reconciliation Commission” to look into human rights abuses by both state and non-state entities, similar to what South Africa did during apartheid. The workout needs to have a time limit.

What was the Special Status of J&K?

• In August 2019, the Constitution (Application to Jammu and Kashmir) Order, 2019 was issued by the President of India, using the authority granted under Article 370(1) of the Constitution.
• By doing this, the Indian government has altered Article 370 rather than repealing it.
• The state of Jammu and Kashmir’s relationship with the Indian Union has been significantly changed as a result of the actions of the Indian government.

What was the Background of J&K?

• The Indian Parliament’s legislative powers in Jammu & Kashmir were limited by Article 370, a “temporary provision” that was introduced to the Indian Constitution on October 17, 1949, and exempted the state, allowing it to establish its constitution.
• By N Gopalaswami Ayyangar, it was added as Article 306 A to the proposed constitution.

What is Article 370?

• The Jammu & Kashmir Constituent Assembly was given the authority to suggest which provisions of the Indian Constitution should apply to the state.
• The J&K Constituent Assembly drew up the state constitution and then was disbanded. The President of India may alter the terms and scope of Article 370 by using Clause 3.
• The legislature of Jammu & Kashmir is empowered under Article 35A to designate the state’s permanent inhabitants as well as their unique rights and benefits.
• The Indian Constitution’s Appendix I has it.
• Various constitutional guarantees apply in various states. Articles 371, 371A–I codify them for states like Andhra Pradesh, Maharashtra, Gujarat, and the Northeast states.

Which are the Key Amendments Implemented by the 2019 Order?

• Constitution (Application to Jammu and Kashmir) Order, 2019
  • The Presidential Order of 1954 has been superseded by the Constitution (Application to Jammu and Kashmir) Order of 2019.
  • The state of Jammu and Kashmir was subsequently divided into two new Union Territories (UTs): Jammu & Kashmir and Ladakh, as a result of the Jammu and Kashmir Reorganisation Bill, 2019, which was enacted by Parliament.
  • Out of the six Lok Sabha seats that the state of Jammu and Kashmir now has, five will stay in the union territory of that state, while one will be given to Ladakh.
  • Jammu and Kashmir’s UT will have an assembly, much like Puducherry and Delhi do.
  • Kashmir would have a lieutenant governor instead of a governor, similar to what happens in Delhi or Puducherry, while Ladakh will become a union territory without a legislature.
• Status of J&K Union Territory
  • Unlike before, the J&K Assembly will have a five-year tenure instead of a six-year one.
  • The J&K 2019 Bill’s Section 32 suggests that the Assembly may enact legislation on any topic in the State and Concurrent lists, except state matters about “public order” and “police.”
  • This is comparable to Article 239A of the Constitution, which covers Delhi and Puducherry as Union Territories.
  • Nevertheless, the Delhi Assembly is unable to enact laws about subjects included in item 18 of the State List—that is, land—due to the inclusion of Article 239AA and the 69th Constitutional Amendment.
  • The Assembly has the authority to enact laws regarding land in J&K.
• The Special Status of J&K Abolished
  • There will be no more distinct flag, anthem, or constitution for Jammu and Kashmir.
  • Dual citizenship will not be granted to Jammu and Kashmiri nationals.
  • The inhabitants of Jammu and Kashmir will now have access to the Fundamental Rights guaranteed by the Indian Constitution, as the new union territory would be governed by it.
  • This will also apply to Article 360, which is where a Financial Emergency can be declared.
  • Jammu and Kashmir would be subject to all legislation enacted by Parliament, including the Right to Education and Information Acts.
  • The Ranbir Penal Code of Jammu and Kashmir will be replaced with the Indian Penal Code.
  • Article 35A is invalid since it derives from the terms of Article 370.

What Kind of Legal Challenges Were There in the Abrogation of Article 370?

• Constitutional Challenges
  • Article 370(3) stated that to revoke Jammu and Kashmir’s special status, the President would need the constituent assembly’s approval. This was the case with the presidential order that attempted to do so.
  • Without proposing a constitutional amendment that would have needed a two-thirds majority in the Parliament, the administration attempted to lessen the autonomy granted under Article 370.
  • The Supreme Court heard a challenge to this clause, arguing that it could only have been inserted into the Indian Constitution by Presidential Order.
  • Article 3 is violated by the conversion of Jammu and Kashmir into a Union Territory since the State Assembly did not send the Bill to the President.
  • The state government’s approval is also necessary for the Presidential order to reorganize the state. But since the governor now rules Jammu and Kashmir, the governor’s approval is taken to mean the government’s approval.
• Federalism Issue
  • An agreement to cooperate between two sovereign nations was similar to the Instrument of Accession.
  • The Supreme Court stated in Santosh Kumar v. State of J&K & ors, 2017 that Jammu and Kashmir have a unique status because of historical factors.
  • In the 2016 case SBI v. Zaffar Ullah Nehru, the Supreme Court ruled that Article 370 cannot be removed without the Jammu and Kashmir Constituent Assembly’s approval.

Also read: Women’s Reservation Bill for Gender Equality 2023

What Signs of Safety and Peace Remain in J&K Now That Article 370 Has Been Abrogated?

• Reduction in Stone Pelting and Militancy
  • The number of stone-pelting incidents decreased as a result of increased security presence and action by federal authorities such as the National Investigation Agency (NIA).
  • There were 222 stone-pelting occurrences in 2020 compared to 618 in 2019.
  • There was a decline in security force injuries from 64 in 2019 to 10 in 2021.
• Reduction in Civilian Injuries
  • The number of civilian injuries involving baton charges and pellet guns dropped from 339 in 2019 to 25 in 2021.
  • Just 20 law and order events were recorded in 2022, indicating that law and order in J&K has improved as well.
• Arrests of Militants and Over-Ground Workers (OGWs)
  • From 82 in 2019 to 178 in 2021, OGWs of militant groups were arrested more often.
  • Compared to the ten months prior, there has been a 32% decrease in terrorist activities between August 2019 and June 2022.

Way Forward

• To improve Kashmir, a ten-year plan focusing on the three E’s (employment, education, and employability) should be implemented.
• By 2026, J&K will have achieved a “zero-terror incident” according to the strategy, which has been in place since 2020.
• The Kashmiri legitimacy issue should be resolved by following Gandhi’s nonviolent and peaceful route.
• The administration can begin to address the issues raised by Article 370 Action by initiating a thorough outreach initiative to all Kashmiris.
• In the context of this, Atal Bihari Vajpayee’s interpretation of Kashmiriyat, Insaniyat, and Jamhooriyat—the inclusive culture of Kashmir, humanitarianism, and democracy—for the resolution of the Kashmir dispute need to be a pillar of the forces promoting state reconciliation.

Conclusion

The decision by the Supreme Court to revoke Article 370 establishes a firm position on Jammu and Kashmir’s incorporation into the Indian Union. The ruling highlights the transient nature of Article 370 and the constitutionality of the government’s actions. To address human rights concerns, the court suggests establishing a Truth and Reconciliation Commission while the region goes through major changes, which include the revocation of special status. Positive indicators, such as a decrease in conflict-related occurrences, are evident in the aftermath of the ruling, underscoring the necessity of a persistent, inclusive strategy to promote long-term peace and prosperity in the area.

Frequently Asked Question(FAQs)

Sources:

• https://www.thehindu.com/news/national/sc-upholds-abrogation-of-article-370-says-move-was-part-of-70-year-old-exercise-to-integrate-jk-to-the-union/article67626914.ece
• https://timesofindia.indiatimes.com/india/was-centres-decision-to-revoke-jk-special-status-constitutionally-valid-sc-to-pronounce-verdict-on-december-11/articleshow/105880999.cms
• https://timesofindia.indiatimes.com/etimes/trending/article-370-verdict-everything-you-need-to-know-about-it/articleshow/105895961.cms