Article 370 Jammu and Kashmir : Decoding its History, Impact, and Controversies

 

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How the Supreme Court Upheld the Abrogation of Article 370 and 35A: A Historical Perspective

On 11th December 2023, the Supreme Court of India delivered a landmark judgment on the abrogation of Articles 370 and 35A of the Indian Constitution, which granted special status to the erstwhile state of Jammu and Kashmir. The five-judge bench unanimously upheld the constitutional validity of the presidential orders issued on 5th and 6th August 2019, which revoked the special provisions and reorganized the state into two union territories: Jammu and Kashmir, and Ladakh. The court also dismissed the petitions challenging the restrictions imposed on communication, movement, and civil liberties in the region following the abrogation.

The judgment has made a historic step towards the integration of Jammu and Kashmir with the rest of India, and the restoration of peace and development in the region. However, it has also been criticized by some as a violation of the rights and aspirations of the people of Jammu and Kashmir, and a disregard for the federal structure of the Indian Constitution. To understand the significance and implications of the judgment, it is important to trace the history and evolution of Article 370 and 35A, and the controversies surrounding them.

The Origin of Article 370 and 35A

Article 370 and 35A were the outcome of the unique circumstances that led to the accession of Jammu and Kashmir to India after the partition of British India in 1947. The princely state of Jammu and Kashmir, ruled by Maharaja Hari Singh, initially chose to remain independent, but faced an invasion by tribal militias from Pakistan in October 1947. The Maharaja sought military assistance from India, and agreed to accede to the Indian Dominion by signing the Instrument of Accession on 26th October 1947. The Instrument of Accession specified that the Indian Parliament would have jurisdiction over Jammu and Kashmir only on matters of defence, external affairs, and communications, and that the state would retain its autonomy on all other matters.

Article 370 was drafted by Gopalaswami Ayyangar, a former prime minister of Jammu and Kashmir and a member of the Constituent Assembly of India, to reflect this arrangement. It was incorporated in Part XXI of the Indian Constitution, which dealt with “Temporary, Transitional and Special Provisions” for various states. Article 370 provided that only Articles 1 and 370 of the Indian Constitution would apply to Jammu and Kashmir, and that the President of India could extend other provisions of the Constitution to the state with the concurrence of the state government. It also empowered the state to have its own constitution, flag, and symbols, and to define the rights and privileges of its “permanent residents”.

Article 35A was added to the Indian Constitution by a presidential order in 1954, following the Delhi Agreement between Prime Minister Jawaharlal Nehru and Jammu and Kashmir’s Prime Minister Sheikh Abdullah. It empowered the state legislature to enact laws to define the permanent residents of the state, and to grant them special rights and privileges with respect to land ownership, employment, education, and other matters. It also barred outsiders from acquiring any immovable property or settling in the state.

The Controversy over Article 370 and 35A

Article 370 and 35A were meant to be temporary and transitional arrangements, subject to the final settlement of the Kashmir issue. However, they became a source of contention and conflict over the years, as various political and social forces challenged or defended their validity and necessity. Some of the main arguments for and against Article 370 and 35A are:

• For: Article 370 and 35A were the basis of the constitutional relationship between India and Jammu and Kashmir, and a reflection of the state’s distinct identity, culture, and history. They were also a safeguard for the rights and interests of the people of Jammu and Kashmir, especially the Kashmiri Pandits, the Gujjars, the Bakarwals, and other minorities, who faced discrimination and marginalization from the dominant groups. They were also a guarantee for the peaceful resolution of the Kashmir dispute, and a recognition of the aspirations of the people of Jammu and Kashmir for greater autonomy and self-determination.
• Against: Article 370 and 35A were a hindrance to the integration of Jammu and Kashmir with the rest of India, and a cause of alienation and separatism among the people of the state. They were also discriminatory and unconstitutional, as they violated the principles of equality, secularism, and democracy enshrined in the Indian Constitution. They also hampered the development and progress of the state, as they prevented the implementation of various central laws and schemes, and discouraged investment and tourism. They also encouraged corruption, nepotism, and dynastic politics, and gave rise to terrorism and violence in the region.

The Abrogation of Article 370 and 35A

On 5th August 2019, the President of India issued the Constitution (Application to Jammu and Kashmir) Order, 2019, which superseded the previous order of 1954, and extended all the provisions of the Indian Constitution to Jammu and Kashmir. The order also stated that the references to the state government in Article 370 would mean the Governor of Jammu and Kashmir, who was acting on the advice of the central government, as the state was under President’s rule since June 2018. On the same day, the Home Minister of India introduced the Jammu and Kashmir Reorganisation Bill, 2019, in the Rajya Sabha, which proposed to bifurcate the state into two union territories: Jammu and Kashmir, with a legislature, and Ladakh, without a legislature. The Bill also revoked Article 35A, and stated that the provisions of Article 370 would cease to have effect, except for the clause that declared Jammu and Kashmir to be a part of India. The Bill was passed by both the houses of the Parliament, and received the President’s assent on 9th August 2019.

The abrogation of Article 370 and 35A was accompanied by a massive security clampdown in Jammu and Kashmir, which included the deployment of additional troops, the imposition of curfew, the suspension of internet and mobile services, the detention of political leaders and activists, and the restriction of media and civil society access. The government justified these measures as necessary to prevent any law-and-order situation, and to ensure the smooth implementation of the constitutional changes. The government also claimed that the abrogation of Article 370 and 35A would enter in a new era of development, peace, and prosperity in Jammu and Kashmir, and would end the decades-long violence and instability in the region.

The Supreme Court Judgment on Article 370 and 35A

The abrogation of Article 370 and 35A was challenged by several petitions in the Supreme Court, which raised various legal and constitutional issues. Some of the main questions before the court were:

• Whether the President had the power to issue the order of 2019, without the concurrence of the state government or the Constituent Assembly of Jammu and Kashmir, as required by Article 370?
• Whether the Parliament had the power to amend or repeal Article 370 and 35A, without the ratification of the state legislature, as required by Article 368?
• Whether the reorganisation of Jammu and Kashmir into two union territories was in violation of the federal structure of the Indian Constitution, and the principle of democracy and consent of the people?

 

The Supreme Court, after hearing the arguments of the parties, delivered its judgment on 11th December 2023, upholding the validity of the presidential order and the reorganisation bill, and dismissing the petitions challenging the restrictions. The court gave the following reasons for its decision:

• The President had the power to issue the order of 2019, as the reference to the state government in Article 370 meant the Governor, who was acting on the advice of the central government, as the state was under President’s rule. The reference to the Constituent Assembly of Jammu and Kashmir was also redundant, as it had ceased to exist after framing the state constitution in 1956.
• The Parliament had the power to amend or repeal Article 370 and 35A, as they were not part of the basic structure of the Indian Constitution, and did not require the ratification of the state legislature. Article 368 gave the Parliament the power to amend any part of the Constitution, including Part XXI, which contained Article 370 and 35A. 

·      The reorganization of Jammu and Kashmir into two union territories was within the legislative competence of the Parliament under Article 3 of the Constitution, which empowers it to form new states and alter the boundaries or names of existing states by a simple majority.

The reorganization of Jammu and Kashmir into two union territories did not affect the federal structure of the Indian Constitution, as the state of Jammu and Kashmir was not a constituent unit of the Indian federation, but an acceding state that had a special relationship with the Union, which was governed by Article 370 and the Instrument of Accession.

 

Conclusion

The verdict has put an end to the legal debate over the abrogation of Article 370 and 35A, but there are still many challenges and opportunities ahead for the region.