In New Delhi, edited by: C. Krishnasai, updated on December 11, 2023, at 03:20 PM
Introduction
After 16 days of hearing, the Indian Supreme Court unanimously upheld the Indian government’s decision to abrogate Article 370 of the Indian Constitution, which guaranteed the special autonomy status of the former state of Jammu and Kashmir.
It also announced the validity of the central government’s decision to separate the Ladakh region from Jammu and Kashmir in August of that year.
The Three Judgments
While announcing the judgment on Monday (December 11), Chief Justice of India D.Y. Chandrachud stated that the Supreme Court came out with three judgments in response to a set of petitions against the government.
What is Article 370?
Article 370 granted Jammu and Kashmir its own constitution and decision-making rights on all matters except defense, communications, and foreign affairs. This special status of the state was revoked after the abrogation of Article 370.
Article 35A was contained within Article 370, which allowed the former state to define who its permanent residents were and grant them special rights such as government jobs and property ownership.
However, as mentioned in the constitution and pointed out by the court during the ruling, Article 370 was a temporary provision.
In 1951, a Constituent Assembly was elected for Jammu and Kashmir to draft the constitution of Jammu and Kashmir within the framework of the Indian Constitution and “the subjects that the state should join the Indian Union.”
It was understood that this assembly would have the authority to determine the future course of Article 370.
Validity of the Legislative Assembly Aggregation and Presidential Proclamation
In the President’s orders of 2019, Parliament introduced an amendment that gives new meaning to “Constituent Assembly of Jammu and Kashmir” to mean “Legislative Assembly of Jammu and Kashmir,” then assumed the powers of the Legislative Assembly through presidential order to abrogate Article 370.
Petitioners objected to this and questioned whether these actions could be taken by the Union by assuming state powers when under presidential rule.
The Supreme Court upheld the orders referring to the landmark ruling in the case of “S.R. Bommai vs. Union of India” from 1994, which addressed the powers and limitations of the governor under presidential rule.
Chief Justice D.Y. Chandrachud stated that the governor (the president in the case of Jammu and Kashmir) could undertake “any” role in state legislation and such action must be judicially tested only in exceptional cases.
The Supreme Court cited an interpretation of the Bommai judgment, stating there is no “manifest case that the presidential orders were illegal or exercised power in a bizarre manner.”
Chief Justice Chandrachud said, “The Constituent Assembly of Jammu and Kashmir was not intended to be a permanent body. It was formed only to frame the constitution. The recommendations of the Constituent Assembly were not binding on the president.”
Sovereignty of Jammu and Kashmir
While addressing the issue of Jammu and Kashmir having a special status that allowed it to enjoy autonomy within the federal structure of the Indian political system under Article 370, the Supreme Court affirmed that Jammu and Kashmir did not retain any element of internal sovereignty after acceding to India in 1947.
The Chief Justice stated, “The state of Jammu and Kashmir does not have internal sovereignty different from other states. Whether Jammu and Kashmir retained an element of sovereignty or internal sovereignty when it joined the Indian Union, we said no.”
During the rule of Maharaja Hari Singh, the last ruler of the former princely state of Jammu and Kashmir, he declared that he would retain his sovereignty, the court noted.
However, his successor Karan Singh issued another proclamation that the Indian Constitution would prevail over all other laws in the state, and the court noted that the subsequent proclamation had the effect of merging like all other princely states that joined India.
Article 370: A Temporary Provision
The Supreme Court upheld the government’s decision to abrogate Article 370, stating that it is a temporary and transitional measure.
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In delivering its judgment, the court stated that it conducted a textual reading of the historical context of the inclusion of Article 370 and its placement in Part XXI of the Constitution, which deals with temporary provisions.
Judge Chandrachud said, “We consider that Article 370 is a temporary provision. It was introduced to serve the transitional purposes of a temporary process. It was for temporary purposes due to the circumstances of the war in the state. The textual reading also clarifies that it is a temporary provision, and that is why it was placed in Part 21 of the Constitution.”
This article was written by C. Krishna Sai, a member of the WION web team. He is a political news addict and an enthusiastic cricket follower.
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