Introduction
The Indian Constitution’s Article 370 gave the former state of Jammu and Kashmir autonomy generated a lot of historical, political, and legal discussion. This provision was written to take into account the special circumstances surrounding Jammu and Kashmir’s 1947 entrance to the Indian Union. The Instrument of Accession, which Maharaja Hari Singh of Jammu and Kashmir signed in October 1947, is the source of Article 370. With the help of this document, the state was able to join the Indian Union without giving up much authority. This unique position was then codified in the Constitution by the addition of Article 370. Jammu and Kashmir was granted autonomy over internal governance, hence restricting the enforcement of Indian laws. Article 370’s autonomy became a hot topic in political discussions, some pushed for its progressive degradation in the name of national integration, while others supported its preservation as a symbol of the state’s distinct identity.
The Indian Parliament’s legislative powers in Jammu & Kashmir were limited by Article 370, a “temporary provision” that was added to the Indian Constitution on October 17, 1949, and exempted the state, allowing it to establish its own constitution. N Gopalaswami Ayyangar inserted it as Article 306 A into the proposed constitution.
The provision limits the Indian parliament’s ability to enact laws for any one of its states. The procedure for amending the constitution outlined in Article 368 has not been followed in the addition of this article. Instead, a presidential order was used to include it into the constitution. A few basic rights of women who marry outside of the law, manual labourers who scavenge, refugees from West Pakistan, and other groups are also violated by this article. It is also criticised for giving the state government the authority to unfairly discriminate against Indian citizens.
Article 35A, an extension of Article 370, gives the legislature of Jammu and Kashmir the authority to define who is a “permanent resident” of the state, grant that person special rights and privileges, and prohibit residents of other states from working or owning property in the state. This article was written with the goal of preserving J&K’s demographic makeup. Although residents of Jammu and Ladakh, who are primarily Hindu and Buddhist, are allowed to live in Kashmir, the region’s demographic makeup has largely not changed. Because Article 35A was not added through an amendment process, its legitimacy has been contested.
Contextual Framework
The BJP and the Peoples’ Democratic Party (PDP) formed an alliance government in Jammu and Kashmir in 2015, but it fell apart in 2018, forcing the Chief Minister to resign.
As mandated by Section 92 of the Jammu and Kashmir Constitution, the Governor has the authority to declare in the event that the State’s constitutional machinery fails, all of the powers and duties of the Government of the State will be assumed by the Governor. Section 92 requires the President of India’s consent under clause (5) before a Proclamation may be made. After six months, the Proclamation expires as per Section 92(3).
Six months after the Proclamation was issued under Section 92(3), the Governor recommended in a report to the President on November 28, 2018, that Article 356 of the Constitution be invoked. After taking into account the report from the Governor of Jammu and Kashmir, the President promulgated President’s rule in the State on December 19, 2018, by issuing a proclamation under Article 356, the state constitution. Which included that the President assume the functions of the State’s Government and the powers vested in or exercisable by the State’s Governor under the State and Indian Constitutions and that the State Legislature’s powers shall be exercised by or under the authority of Parliament and that Article 3 of the Constitution’s first and second provisos are suspended.
In 2018, the Lok Sabha and Rajya Sabha accepted the extension of the President’s rule, which was put into effect in 2019. In accordance with Article 356(4) as it relates to the State of Jammu and Kashmir, the President’s rule lasted for six months following the Rajya Sabha’s adoption of the second resolution on July 3, 2019. Constitutional Order 272 was issued by the President on August 5, 2019, replacing earlier orders and extending to Jammu and Kashmir all the provisions of the Indian Constitution. Using the authority granted by Article 370(1), the President implemented stating that the entire scope of the Indian Constitution, superseding any earlier Constitution Orders that designated certain portions of the Constitution as applicable to Jammu and Kashmir, either with or without changes and that Article 367(4), wherein the phrase “Constituent Assembly” in the proviso was changed to “Legislative Assembly” in Article 370(3).
The Parliament suggested eliminating all of Article 370’s clauses. The state was divided into the Union Territories of Jammu and Kashmir and Ladakh after the Jammu and Kashmir Reorganisation Bill was approved by Parliament. President of India issued under Article 370(3) of the Constitution as amended by Constitutional Order 272, which makes Article 370 inapplicable to Jammu and Kashmir as of August 6, 2019. On October 31, 2019, the Reorganisation Act became operative, resulting in the division of the state into two Union territories.
Recent Development
In a nutshell, Article 370 of the Indian Constitution originally granted Jammu and Kashmir exceptional autonomy. In 2018, a crisis in governance resulted in the implementation of governor’s rule in Jammu & Kashmir. President’s rule was then enacted in accordance with Article 356. Article 370 was repealed and Jammu and Kashmir was given full constitutional protection under Constitutional Orders 272 and 273. With the passage of the Jammu and Kashmir Reorganisation Act, 2019, the state was divided into two Union territories. The same is contested by petitioners in the recent case.
The Supreme Court made it clear that executive notifications cannot be used to amend the Constitution’s substantive provisions. The Court emphasised that Article 368’s mandated procedure must be followed when amending any constitutional provisions. This means a bill containing the necessary majority of votes must pass the Parliament in order for it to be amended.
The Constitution Bench nullified a portion of the President’s notification Constitutional Order 272 based on this premise. The Court specifically struck down a provision added to Article 367 that stated that any references to the “Constituent Assembly of Jammu and Kashmir” were to be interpreted as referring to the “Legislative Assembly of Jammu and Kashmir.” It also suggested that the phrase “Governor of J&K” may be used in place of “Government of J&K.”
These changes made it easier to issue Constitution Order 273 later on, which made Article 370 inoperative without the recommendation of the dissolved J&K Constituent Assembly, as required by Article 370(3) proviso. Interpretation provisions that define specific terminology used in the Constitution are included in Article 367. The modifications to Article 367 proposed by the Presidential notification (CO 272) were not authorised by the Court. Since the J&K Legislative Assembly now has the ability to suggest the abrogation of Article 370 instead of the J&K Constituent Assembly, it was decided that these developments have significant ramifications for Article 370. As such, the Court found that the changes made to Article 367 were a change made to Article 370.
After Article 370 Abrogation
The legal and administrative environment of Jammu and Kashmir has undergone a significant transformation with the constitutional revisions. The removal of Jammu and Kashmir’s distinct constitution, flag, and anthem is one of the such changes. Which brings the area closer to the rest of India, simplifying the legal system and promoting a feeling of oneness among all Indians. Renunciation of dual citizenship is another such change. Citizens of Jammu and Kashmir will now be able to access the Fundamental Rights guaranteed by the Indian Constitution. By guaranteeing a consistent set of rights for every Indian citizen, this integration promotes equality and a strong sense of national identity.
The central government is now able to declare a financial emergency thanks to the extension of Article 360 to the new Union Territory, which strengthens stability and fiscal restraint. Furthermore, Jammu and Kashmir inhabitants are guaranteed the same legal safeguards as the rest of the nation through the implementation of all laws established by Parliament, such as the Right to Information Act and the Right to Education Act.
The Indian Penal Code has superseded the Ranbir Penal Code, resulting in legal uniformity and bringing Jammu & Kashmir into compliance with the country’s larger legal structure. This modification helps ensure that all Indian territories have uniform laws and regulations.
There has been a discernible decline in stone-pelting occurrences as a result of increased security presence and initiatives by federal authorities including the National Investigation Agency (NIA). The number of stone-pelting incidents decreased from 618 in 2019 to 222 in 2020. Injuries to security forces decreased from 64 in 2019 to 10 in 2021.[1] This suggests that the security situation is improving and that the region is becoming more stable and secure.
Furthermore, fewer civilian injuries have resulted from the arrests of militants and Over-Ground Workers (OGWs). Civilian Injuries from pellet guns and baton charges reduced from 339 (2019) to 25 (2021).[2] The overall security situation has improved as a result of the security forces’ proactive initiatives, which have reduced the influence and operational capabilities of militant organisations.
Conclusion
With its intricate development and history, Article 370 was a major factor in determining how Jammu & Kashmir and the Indian Union interacted. Its repeal signalled a dramatic shift in the political and constitutional landscape and sparked discussions about national integration, autonomy, and federalism. Critics voiced worries about the possible deterioration of the state’s unique identity, while supporters claimed that it cleared the path for greater togetherness.
References:
(No date a) 2023 INSC 1058 reportable in the Supreme Court of India Original Writ … Available at: https://main.sci.gov.in/pdf/LU/article_370.pdf (Accessed: 13 December 2023).
(No date a) The big picture – article 370 – दृष्टि आईएएस. Available at: https://www.drishtiias.com/pdf/the-big-picture-article-370.pdf (Accessed: 13 December 2023).
Drishti IAS (2023) SC Verdict on revocation of Article 370, Drishti IAS. Available at: https://www.drishtiias.com/daily-updates/daily-news-analysis/sc-verdict-on-revocation-of-article-370#:~:text=On%2017th%20October%201949,legislative%20powers%20in%20the%20state . (Accessed: 13 December 2023).
[1] Drishti IAS (2023) SC Verdict on revocation of Article 370, Drishti IAS. Available at: https://www.drishtiias.com/daily-updates/daily-news-analysis/sc-verdict-on-revocation-of-article-370#:~:text=On%2017th%20October%201949,legislative%20powers%20in%20the%20state. (Accessed: 13 December 2023).
[2] Drishti IAS (2023) SC Verdict on revocation of Article 370, Drishti IAS. Available at: https://www.drishtiias.com/daily-updates/daily-news-analysis/sc-verdict-on-revocation-of-article-370#:~:text=On%2017th%20October%201949,legislative%20powers%20in%20the%20state. (Accessed: 13 December 2023).
