Article 370 abrogation upheld

What’s in today’s article?

• Why in news?
• What is Article 370?
• Abrogation of Article 370
• Background of the current judgement
• News Summary: Article 370 abrogation upheld 
• Key highlights of the judgement

Why in news?

• The Supreme Court in a 5-0 unanimous ruling upheld the Centre’s abrogation of Article 370 of the Constitution.

Article 370

• About
  • Article 370 is the first article of Part XXI of the Constitution - ‘Temporary, Transitional and Special Provisions’.
  • It exempts J&K from the application of the Constitution of India (except Article 1 and Article 370 itself) and permits the state to draft its own Constitution.
  • It restricts Parliament’s legislative powers in respect of J&K and for extending a central law on subjects included in the Instrument of Accession (IoA), mere “consultation” with the state government is needed.
• Timeline
  • 

Abrogation of Article 370

• On 5 August 2019, the Indian government revoked nearly all of Article 370 of the Indian constitution.
• On August 5th, the President issued The Constitution (Application to Jammu And Kashmir) Order, 2019.
  • This order replaced the term ‘Constituent Assembly’ from Article 370(3) with ‘Legislative Assembly [of Jammu & Kashmir]’.
    • The Order technically amended the interpretation clause Article 367, not Article 370 itself (it used Article 370(1) to do so).
• Later, a Statutory Resolution was introduced in the Rajya Sabha that abrogated most of Article 370.
  • This was possible without the Jammu & Kashmir Legislative Assembly’s concurrence because the State was under President’s rule.
• On 6 August, Parliament passed the Jammu and Kashmir Reorganisation Bill, 2019 that bifurcates the State into two Union Territories: Jammu & Kashmir and Ladakh.
  • The former is provided with a legislative assembly.

Background of the current judgement

• Multiple petitions were filed after the abrogation of Article 370.
• On 28 August 2019, the SC agreed to hear multiple petitions challenging the abrogation of Article 370 and the subsequent bifurcation of J&K into two UTs.
• It constituted a five-judge bench for the same.

News Summary: Article 370 abrogation upheld

• The Supreme Court gave its verdict on the Union government’s 2019 move to amend Article 370 of the Constitution.
  • The abrogation ended the special status conferred to the erstwhile state of Jammu and Kashmir.
• The court held the Constitutional order that revoked Article 370 as valid.

Key highlights of the judgement

• On the ‘unique’ and ‘special status’ of Jammu and Kashmir
  • The SC held that J&K did not retain any element of sovereignty after its accession to India in 1947.
  • The court said that although Maharaja Hari Singh, the erstwhile ruler of the princely state, issued a proclamation that he would retain his sovereignty.
  • However, his successor Karan Singh issued another proclamation that the Indian Constitution would prevail over all other laws in the state.
    • On 25 November 1949, a Proclamation was issued for the State of Jammu and Kashmir by Yuvraj Karan Singh.
    • It stated that the Government of India Act, 1935, which until then governed the constitutional relationship between J&K and the dominion of India, will stand repealed.
    • It further stated that the Constitution of India shortly to be adopted by the Constituent Assembly of India shall be applicable to J&K.
  • This in essence, had the effect of a merger like every other princely state that joined India, the court ruled.
• Jammu and Kashmir has always been an integral part of India
  • CJI Chandrachud cited Section 3 of the J&K Constitution itself, apart from Article 1 and 370 of the Indian Constitution.
  • Article 3 of the J&K Constitution reads: “The State of Jammu and Kashmir is and shall be an integral part of the Union of India.”
    • Being the only state with its own Constitution also does not define a special status.
    • The purpose of J&K Constitution was to ensure everyday governance in the state and the purpose of Article 370 was to integrate the state with India.
• On restoration of statehood
  • The court said the reorganisation of the erstwhile state into Union Territories in 2019 was a temporary move.
  • Hence, it directed the Centre for the restoration of statehood and for Legislative Assembly elections to be held.
• Article 370 - a temporary or a permanent provision
  • The Supreme Court held that Article 370 is a temporary, transitional provision.
    • The court said that the temporary provision served a purpose in the war-like situation prevailing in the state in 1947.
• On the questions relating to the effective abrogation of Article 370
  • The Supreme Court upheld both the presidential proclamations of August 2019.
    • The court was to decide on the legality of the two Presidential proclamations in 2019 which in effect abrogated Article 370.
  • The Court upheld both the proclamations, including the one that gave a new meaning to “constituent assembly of Jammu and Kashmir”, as “Legislative Assembly of Jammu and Kashmir.”
    • The central issue was whether these actions could be taken by the Union assuming powers of the state when it is under President’s rule.
    • Here, the Supreme Court referred to the landmark 1994 ruling in ‘SR Bommai v Union of India’.
    • This case dealt with the powers and limitations of the Governor under President’s rule.
    • In the Bommai case, SC held that the Governor can assume “all or any” roles of the state legislature.
  • Relying on an interpretation of the Bommai ruling, the SC said that there is no prima facie case that the President’s orders were malafide or extraneous exercise of power.
• Truth and Reconciliation Commission
  • Justice Sanjay Kaul, in his opinion, recommended setting up a Truth and Reconciliation Commission to look into alleged violations of human rights by both state and non-state actors in J&K.
    • The commission is an official mechanism to not just acknowledge, but also reveal, wrongdoings by a government so that conflicts of the past can be addressed and resolved.

Q1) What is Instrument of Accession (IOA)?

The Instrument of Accession (IoA) was a legal document that allowed rulers of princely states to join India or Pakistan after the Partition of British India in 1947. The document was first introduced by the Government of India Act of 1935. 

Q2) What is SR Bommai v Union of India case?

S. R. Bommai v. Union of India is a case that raised serious legal questions about the dissolution of Legislative Assemblies and the Proclamation of President's Rule. The case relates to Article 356 of the Constitution of India.

Source: Article 370 abrogation upheld: How SC answered three key questions in the government’s favour | Indian Express | Aljazeera | BBC