Decoding the Supreme Court's Latest Verdict on Article 370« »
22-Dec-2023 | Shounak Roy
The recent judgement by the Supreme Court of India on the abrogation of Article 370 has brought significant changes and clarity to the legal and constitutional status of Jammu and Kashmir (J&K). Here are some key facts and developments from this landmark decision:
The court hearings began on a petition filed by Kashmiri individuals and groups, challenging the Central Government's 2019 decision to revoke Article 370.
Supreme Court's Ruling: The Supreme Court's five-judge constitution bench ruled that the region’s special status, as provided by Article 370, was a "temporary provision". The Court found the removal of this status in 2019 to be constitutionally valid, stating that Article 370 was an interim arrangement due to war conditions in the state.
Article 370's Historical Significance: Originally, Article 370 granted Kashmir autonomy of internal administration, allowing it to make its own laws in all matters except finance, defence, foreign affairs, and communications. It established a separate constitution and flag for the Indian-administered region and included Article 35A, which empowered state lawmakers to define special rights and privileges for permanent residents.
Impact of the Verdict: With the repeal of Article 370, Article 35A was also scrapped. This change allowed non-Kashmiris to buy property in the region, raising concerns about a potential demographic shift in the Muslim-majority region. The Supreme Court also ordered that local legislative elections in Indian-administered Kashmir should be held by September 30 of the next year.
Political Reactions: The verdict was seen as a significant boost for the ruling party, which had promised to end Article 370 in its campaign. Prime Minister Modi hailed the judgement as a testament to a stronger and more united India. Meanwhile, opposition leaders expressed disappointment but resolved to continue their struggle.
Public Sentiment and Concerns: Many Kashmiris viewed the 2019 decision as an annexation and feared new laws designed to change the region's demographics. Members of minority Buddhist communities initially welcomed the move but later expressed concerns about losing land and jobs.
This Supreme Court judgement is a pivotal moment in India's constitutional history, reshaping the legal and political landscape of J&K and its relationship with the rest of India
Article 370, implemented in 1949, was a pivotal element in the constitutional framework of India, granting special status to J&K. Its origins trace back to the historical circumstances surrounding the accession of J&K to India.
The princely state of J&K initially maintained a stance of neutrality at the time of the Indian subcontinent's partition in 1947. Maharaja Hari Singh, the ruler, signed a standstill agreement with Pakistan but faced an invasion from tribal militias supported by Pakistan. This compelled him to seek assistance from India, which was conditioned on signing the Instrument of Accession. Signed on October 26, 1947, this instrument granted India control over J&K's defence, foreign affairs, and communications, while the state retained its sovereignty in other aspects.
The Instrument of Accession laid the groundwork for the inclusion of Article 370 in the Indian Constitution. Drafted as a 'temporary provision', Article 370 allowed J&K to draft its own Constitution and limited the Indian Parliament's legislative powers in the state, except in matters specified in the Instrument of Accession. This special status enabled J&K to have its constitution, state flag, and autonomy over internal administration, except in the mentioned domains.
Over the years, through various Presidential Orders, the Indian government gradually extended most of the Constitution's provisions to J&K, eroding the autonomy granted by Article 370. This culminated in the abrogation of Article 370 on August 5, 2019. Following this, the state was bifurcated into two Union Territories: J&K, and Ladakh.
This decision marked a significant shift in the relationship between J&K and the Indian Union, transforming the socio-political landscape of the region and altering its historical status within the Indian federation .
The Petition and the Court's Proceedings
The Supreme Court's proceedings regarding the abrogation of Article 370 were complex and multi-faceted, involving a series of petitions that challenged the government's decision. These petitions brought forth various legal arguments and constitutional interpretations.
Nature of the Petitions: The petitions filed in the Supreme Court questioned the constitutional validity of the government's actions concerning Article 370. They raised concerns about the manner and the legislative process used in abrogating the special status of J&K.
Arguments Presented: Petitioners argued that the abrogation of Article 370 violated the basic structure of the Indian Constitution. They contended that the special status granted to J&K was a fundamental aspect of the accession of the state to India. Additionally, they argued that the manner in which Article 370 was abrogated—without the concurrence of the state government or a functioning state assembly—was unconstitutional.
Government's Defence: In response, the government argued that the abrogation was a necessary step for the integration of J&K into India and for ensuring the region's development. They maintained that Article 370 was always intended to be a temporary provision, and its continuation had become a hurdle to the region's progress and integration.
Judicial Deliberations: The Supreme Court, in its deliberations, examined the historical context of Article 370, its constitutional validity, and the procedural aspects followed in its abrogation. The court scrutinised the government's rationale behind the decision and whether it conformed to the principles of constitutional law and federalism.
Final Verdict: The Supreme Court upheld the government's decision to abrogate Article 370, declaring it constitutionally valid.
Analysis of SC's Judgement
Temporary Nature of Article 370: The Supreme Court emphasised that Article 370 was always intended to be a temporary provision. The Court interpreted the historical context and the wording of the Constitution to argue that the provision was not meant to be permanent.
Presidential Orders and Article 370: The judgement analysed the use of Presidential Orders under Article 370 to extend various provisions of the Indian Constitution to J&K. It evaluated the legal validity of these orders and their role in integrating J&K with the rest of India.
Role of the Constituent Assembly: The Court examined the role of the Constituent Assembly of J&K in the application and eventual abrogation of Article 370. It noted that the Constituent Assembly’s dissolution without recommending the provision's abrogation left a constitutional gap, which was addressed by the Parliament.
Constitutional Amendment Process: The judgement also delved into the powers of the Indian Parliament to amend the Constitution, including Article 370. It evaluated whether the abrogation followed the proper constitutional amendment process and adhered to the principles of federalism.
Federal Structure and Autonomy: A significant part of the judgement dealt with the balance between state autonomy and the sovereignty of the Union. The Court analysed how the abrogation of Article 370 impacted the federal structure of India, particularly in terms of Centre-State relations.
National Integration: The judgement touched upon the aspect of national integration, viewing the abrogation of Article 370 as a step towards bringing J&K on par with other states in India and integrating it more closely with the rest of the country.
Legal Precedents and Interpretations: Throughout the judgement, the Court referred to various legal precedents and interpretations of constitutional provisions to justify its conclusions.
This analysis of the SC's judgement demonstrates the intricate balance between various constitutional doctrines and the evolving nature of federalism in India.
Impact on J&K
Security and Violence: There has been a notable shift in the security situation in the region. Since the abrogation, there has been a reported decline in terror activities, including a decrease in the recruitment of locals into militancy and the number of militants killed in operations. Official figures indicate a significant reduction in civilian casualties in protests and stone-pelting incidents compared to the three years preceding the abrogation.
Economic and Social Changes: The region has seen an increase in investment and economic activities. Following the abrogation and introduction of the new Industrial Development Scheme, J&K received a significant amount of investment proposals. This increase in investment is also reflected in the tourism sector, with a notable rise in tourist arrivals.
Political and Social Reactions: Some viewed it as a step towards integrating J&K more closely with India, while others criticised it for altering the demographics and undermining the autonomy of a Muslim-majority state. The response from mainstream political parties in the region has been mixed, with some struggling to adapt to the new political landscape.
Human Rights Concerns: There have been concerns raised about the human rights situation in the region following the abrogation. Issues such as arbitrary detentions, restrictions on freedom of expression and movement, and allegations of human rights abuses have been highlighted by various organisations.
International Reactions: The abrogation of Article 370 also drew reactions from the international community, particularly from neighbouring countries like Pakistan and China, who opposed the move citing concerns over territorial sovereignty.
Overall, the abrogation of Article 370 has brought about profound changes in J&K, affecting its political, social, economic, and security dynamics. The long-term implications of these changes are still unfolding, and the region continues to adapt to its new status within the Indian Union
In a comparative perspective, the cases of Catalonia in Spain and Scotland in the UK offer valuable insights. Both Catalonia and Scotland have strong independence movements, with around 45% support for independence in both regions. In Catalonia, demands for a referendum have been significant since 2012, but Spain's constitutional court has suspended referendum laws, leading to legal and political tensions. The Scottish independence movement, on the other hand, has operated within the legal framework of the UK, with a referendum held in 2014. The approaches of Spain and the UK differ, with Spain relying more on legal arguments to maintain union and the UK engaging more in debates about economic and social benefits.
Regarding J&K, India's approach to revoking Article 370 for national integration presents a different scenario, where constitutional and legal measures significantly altered the region's autonomy and status. The future implications for J&K are still unfolding, with potential changes in political dynamics and legal interpretations of the Indian constitution.
The experiences of Catalonia, Scotland, and J&K highlight the complexities and sensitivities involved in managing territorial autonomy and aspirations for independence within sovereign nations
The future of J&K post-Article 370 is an unfolding story. Political dynamics in the region are likely to evolve, potentially setting new precedents in Indian democracy. The broader implications for the Indian constitution and its interpretation by the judiciary will be watched closely by legal experts and politicians alike.
The Supreme Court's verdict on Article 370 is more than a legal decision; it's a turning point in India's constitutional history. As we witness the unfolding narrative of J&K's integration into the Indian Union, this judgement will be remembered as a significant milestone in the journey of Indian democracy.