TOPIC: Petitions challenging the Abrogation of Article 370
INTRODUCTION: –
Article 370 of the Indian Constitution was a temporary provision that granted special autonomous status to Jammu and Kashmir. It allowed the state to have its own sovereignty by holding its self-made constitution, flag, and significant decision-making powers, except in areas like defense and foreign affairs. Article 370 was temporary in the sense that the Constituent Assembly of Jammu and Kashmir had the right to modify, delete or retain it, and it was temporary only till a plebiscite was held to ascertain the public opinion in the state of Jammu and Kashmir and restricting the legislative authority of the Indian Parliament in the territory.
The abrogation of Article 370 refers to the revocation of Article 370 of the constitution, that has granted special autonomous status to the said state. This historical move took place on August 5, 2019, when the government of India effectively nullified Article 370, thereby ending the special privileges and autonomy that Jammu and Kashmir had enjoyed for decades. As of now, the region has been reorganized to form two union territories i.e., Jammu and Kashmir, and Ladakh under the aegis of Indian government. However, this action of the Indian government led to a lot of controversy.
PRESIDENTIAL ORDERS OF 2019: –
On August 5th, 2019, the former President Ram Nath Kovind issued presidential order known as C.O. 272 that had amended Article 367 of the Indian Constitution which explains how the Constitution should be interpreted. The amendment made it such that the reference to the ‘Constituent Assembly of the state’ in Article 370(3) became a reference to the ‘Legislative Assembly of the state’. At first, Article 370 could only be amended by the recommendation of the Jammu and Kashmir ‘Constituent Assembly’. C.O. 272 allowed the Union to amend Article 370 without the recommendation of the Constituent Assembly of the state.
A few hours later, as their continued the president’s rule in Jammu and Kashmir: On August 6, 2019, President Kovind issued a Proclamation, known C.O. 273 that put into effect the Rajya Sabha’s enjoinder to abrogate Article 370 . All clauses of Article 370 ceased to operate in Jammu and Kashmir, except clause 1 which was amended to state that the Constitution of India applies to the State. This led to the removal of special status to Jammu and Kashmir which was accorded by Article 370 of the constitution.
RECENT SUPREME COURT JUDGEMENT ON ABROGATION OF ARTICLE 370: –
The recent judgement of Supreme Court on the issue in September 2023 was a challenging decision to be made by the 5-Judge bench of CJI D.Y. Chandrachud, Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai and Justice Surya Kant; wherein the key issues about the abrogation of Article 370 were dealt. Following are the key issues and the arguments presented by the respective parties:
- Can Article 370(1)(d) be legally used to alter the interpretation of Article 370, as was done by presidential order CO 272?
- Does Statutory Resolution and CO 273 violate the fundamental democratic rights of the people of J&K under Articles 14 and 21 of the Indian Constitution, by abrogating Article 370 without their consent during President’s Rule?
- Does the Jammu and Kashmir (Reorganization) Act, 2019 violate Article 3 and Part III of the Constitution?
The government of India (Respondents), represented by Attorney-General R. Venkataramani, Solicitor-General Tushar Mehta and advocate Kanu Agrawal, had argued that the abrogation of Article 370 was necessary to completely integrate Jammu and Kashmir into the Union of India. The Solicitor-General of India claimed that terrorism, infiltration, stone-throwing and casualties among security personnel had reduced by 45.2%, 90.2%, 97.2% and 65.9%, respectively, post the abrogation in 2019.
The petitioners, represented by senior lawyers including Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Dushyant Dave and Gopal Sankaranarayanan, said that the abrogation of Article 370 is an “attack on federalism”. And; a fraud played on the Constitution using brute majority in Parliament had issued a series of executive orders through the President to divide a full-fledged State into the UTs of Jammu and Kashmir and Ladakh.
The Supreme Court had reserved its verdict in Article 370 abrogation challenge after a 16-day hearing on petitions challenging the abrogation of Article 370; inferring that the court further needs time to give its judgement on the petition challenging the abrogation of Article 370.
CONCLUSION: –
To conclude, the petitions challenging the removal of Article 370 are quintessential of a complex and contentious issue. While they represent the different viewpoints and concerns of various stakeholders, the final decision will be determined through the legal and political processes. The outcome of these petitions will undoubtedly shape the future of the state of Jammu and Kashmir, the debate surrounding Article 370 will continue to be a significant topic of discussion and scrutiny in the years to come.
Author: ASHI SANGWAN, GGSIPU (FIMT), New Delhi
