Article 370 of the COI
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Article 370 of the COI

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 12-Dec-2023

Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of In Re: Article 370 of the Constitution of India, has upheld the repeal of the special status of Jammu and Kashmir under Article 370 of the Constitution of India, 1950 (COI) and also affirmed the power of the Parliament to carve out a Union Territory from a State.

What was the Background of In Re: Article 370 of the Constitution of India Case?

  • Article 370 of the COI 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) of the COI.
  • These orders have the effect of applying the entire COI to the State of Jammu and Kashmir and abrogating Article 370.
  • Contemporaneously, Parliament enacted the Jammu and Kashmir Reorganization Act 2019, which bifurcated the State into two Union territories.
  • The petitioners have challenged the constitutionality of these actions.
  • In July 2023, the Supreme Court listed the matter to a Constitution Bench led by Chief Justice of India (CJI) D Y Chandrachud.
  • The Constitution Bench upheld the Union’s abrogation of Article 370.

What were the Court’s Observations?

  • The Constitution Bench upheld the Jammu and Kashmir Reorganization Act 2019 to the extent it created the Union Territories out of the erstwhile State of Jammu and Kashmir.
  • The Court referred to Article 3(a) of the COI as per which, the Parliament may by law form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State. Thus, the Court held that Parliament has the power to carve out a Union Territory from a State.

What are the Relevant Legal Provisions Involved in it?

Article 370, COI

  • Article 370 of the Indian Constitution is a temporary provision which grants special autonomous status to Jammu & Kashmir.
  • The provisions under this Article had three main ingredients:
    • India would not make laws in Jammu and Kashmir except for three subjects (defence, external affairs and communications) included in the Instrument of Accession. The Parliament could make laws beyond them only with the concurrence of the Jammu and Kashmir Constituent Assembly.
    • No provisions of COI would be applicable to Jammu and Kashmir except for Article 1 of the COI.
    • The special status of Jammu and Kashmir could not be amended or repealed, unless the Constituent Assembly of Jammu & Kashmir recommended it.

Article 3, COI

  • Article 3 deals with the formation of new States and alteration of areas, boundaries or names of existing States. It states that -

Parliament may by law

(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State.

(b) increase the area of any State.

(c) diminish the area of any State.

(d) alter the boundaries of any State.

(e) alter the name of any State.

Jammu and Kashmir Reorganization Act, 2019

  • On 5th August 2019, Parliament passed the Jammu & Kashmir Reorganization Bill that led to bifurcation of the erstwhile state (into Jammu & Kashmir and Ladakh) and the effective abrogation of Article 370 of the COI that gave the region its special status.
  • Containing provisions to reconstitute Jammu and Kashmir and Ladakh, this Act became effective on 31st October 2019.
  • The act consists of 103 clauses, extends 106 central laws to the UTs, repeals 153 state laws, and abolishes the Jammu and Kashmir Legislative Council.
  • The act has also given powers to the Central government to pass a number of executive orders in relation to both the union territories.