1. INTRODUCTION

On December 11, 2023, a Constitution Bench of the Supreme Court unanimously upheld the power of the President of India to abrogate Article 370 [1] of the Indian Constitution. This abrogation, which took place in August 2019, led to the bifurcation of the erstwhile state of Jammu and Kashmir into two Union Territories of JK and Leh and also stripped the state of its special privileges.

The top court explained that Article 370 was only a temporary provision, meant to facilitate the accession of the erstwhile princely state to the Union of India during a time fraught with internal strife and external aggression. The judgement was passed by a five-judge constitution bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.

The SC directed that steps should be taken to conduct elections in the assembly by September 30, 2024. The Supreme Court did not accept the argument of petitioners that the Union government cannot take actions of irreversible consequences in Jammu Kashmir during the Presidents Rule (the abrogation was done during the Presidents Rule).

Furthermore, the Supreme Court stated that Jammu and Kashmir did not retain an element of sovereignty after joining India. Article 370 of the Constitution of India incorporated special arrangements for the governance of the State of Jammu and Kashmir. The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b).[1] These orders have the effect of applying the entire Constitution of India to the State of Jammu and Kashmir and abrogating Article 370. Contemporaneously, Parliament enacted the Jammu and Kashmir Reorganisation Act 20191 which bifurcated the State into two Union territories. The petitioners have challenged the constitutionality of these actions.[3]

2. FEATURES

Article 370 Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything in this Constitution,

(a) The provisions of Article 238[1] shall not apply in relation to the State of Jammu and Kashmir;

(b) The power of Parliament to make laws for the said State shall be limited to

1. Those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
2. Such other matters in the said Lists as, with theconcurrence of the Government of the State,the President may by order specify Explanation For the purposes of this article, theGovernment of the State means the person for the time being recognized by the President as the Maharaja of Jammu and Kashmiracting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March 1948.

(c) The provisions of Article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph 1 of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph 2 of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that therecommendation of the Constituent Assembly of the State referred to in clause (2)shall be necessary before the President issues such a notification.

3. REVOKING OF ARTICLE 370

On August 5, 2019, the Indian Government revoked the special status of Jammu and Kashmir under Article 370 of the Constitution of India. This article was a temporary provision that allowed JK to have a separate Constitution and gave it some autonomy. However, the Constituent Assembly of Kashmir was dissolved in 1957 without making any recommendation for amendment or abrogation of Article 370. As a result, the Indian Supreme Court ruled that Article 370 was a permanent provision of the Indian Constitution.

To overcome this problem, the Government used the powers of the President under Article 370(1) to indirectly amend Article 370(3) via Article 367. Article 367 is an interpretation clause of the Constitution that added a new sub-clause 4(d). According to this amendment clause, Constituent Assembly under Article 370(3) must be read as Legislative Assembly of the State. This allowed the JK Assembly to recommend abrogation of Article 370. However, Jammu and Kashmir were under Presidential Rule, so Parliament made the recommendation under the newly modified Article 370(3). The President then declared Article 370 to have ceased to operate.[2]

4. CONCLUSION

Therefore, Article 370 is currently inoperative under the Constitution. The state of Jammu and Kashmir is now an integral part of India, and while Article 370 is not the issue of integration, it was necessary to grant autonomy or federalism. After the judgment in 2018, the Indian Supreme Court held that Article 370 is a permanent provision since the Constituent Assembly of the State has ceased to exist. Despite this, the Indian Government has rendered Article 370 inoperative' in order to overcome legal challenges. On 11 December 2023, The Supreme Court Of India upheld the power of the president to abrogate Article 370.[1]

CITATION

[1] Niharika Agrawal," Article 370 of the Constitution of India",I- Pleaders

[2] Bodh Raj Sharma," The Special Position of Jammu and Kashmir in the Indian Constitution", The Indian Journal Of Political Science,Vol. 19, No. 3, pg 282-290.

[3] In the Supreme Court Of India Original Writ/ Appellate Jurisdiction available at https://main.sci.gov.in/pdf/LU/article_370.pdf