On 11th December, the Supreme Court of India upheld the Centre’s decision to abrogate Article 370. The National Democratic Alliance (NDA)-led government at the Centre under the leadership of Prime Minister Narendra Modi revoked Article 370, taking away the special status of the state of Jammu and Kashmir on 5th August 2019. The state was then reorganised into two Union Territories, Ladakh and Jammu and Kashmir.
Chief Justice of India, Justice DY Chandrachud, Justice Gavai and Justice Surya Kant gave a joint judgment, while Justice Khanna and Justice Kaul authored separate judgments.
In his judgment, CJI Chandrachud held that Jammu and Kashmir does not hold any internal sovereignty after accession to the Union of India.
#BREAKING CJI: whether jammu and kashmir retained an element of internal sovereignty after it acceded to India: WE HOLD IT DOES NOT HOLD ANY INTERNAL SOVEREIGNTY AFTER ACCESSION TO UNION OF INDIA#SupremeCourt #Article370
— Bar & Bench (@barandbench) December 11, 2023
Furthermore, CJI said that Article 370 was a temporary provision, and it was introduced to serve a transitional purpose to serve an interim process. It was introduced due to the war conditions in the state. CJI added that the textual reading showed it was a temporary provision, and thus it was placed in part 21 of the constitution.
#BREAKING CJI: Now challenge to constitutional order 273: to answer this we have to decide if 370 is a temporary provision: WE HOLD THAT ARTICLE 370 IS A TEMPORARY PROVISION. IT WAS INTRODUCED TO SERVE TRANSITIONAL PURPOSE TO SERVE AN INTERIM PROCESS. It was for a temporary…
— Bar & Bench (@barandbench) December 11, 2023
CJI added that the effect on Presidential Power to issue a notification abrogating Article 370 subsisted. “A ruler of each Indian state had to issue a proclamation adopting the Constitution of India,” the court added.
#BREAKING CJI: Now effect of dissolution of constituent assembly : WE HOLD THAT EFFECT ON PRESIDENTIAL POWER TO ISSUE A NOTIFICATION ABROGATING ARTICLE 370 SUBSISTS. A ruler of each Indian state had to issue a proclamation adopting the Constitution of India. #SupremeCourt…
— Bar & Bench (@barandbench) December 11, 2023
Furthermore, CJI also held that all provisions of the Constitution of India can be applied to Jammu and Kashmir.
#BREAKING CJI: WE HAVE HELD ALL PROVISIONS OF THE CONSTITUTION CAN BE APPLIED TO JAMMU AND KASHMIR TO 370(1)(D) and non application of mind cannot be claimed. #SupremeCourt #Article370
— Bar & Bench (@barandbench) December 11, 2023
In conclusion, the court stated as follows.
#BREAKING CJI: CONCLUSIONS
— Bar & Bench (@barandbench) December 11, 2023
1. J&K DOES NOT RETAIN ANY ELEMENT OF SOVEREIGNTY AFTER INSTRUMENT OF ACCESSION WAS SIGNED
2. NO INTERNAL SOVEREIGNTY FOR JAMMU AND KASHMIR
3. CHALLENGE TO THE PROCLAMATION OF PRESIDENTIAL RULE IS NOT VALID
4. EXERCISE OF POWER OF PRESIDENT MUST…
- J&K does not retain any sovereignty after the instrument of accession was signed.
- No internal sovereignty for Jammu and Kashmir
- The challenge to the proclamation of the presidential rule is not valid.
- The exercise of the president’s power must have a reasonable nexus with the object of presidential rule.
- The power of parliament to legislate for the state cannot exclude law-making power.
- Article 370 was a temporary provision.
- When the constituent assembly was dissolved, only the transitory power of the assembly ceased to exist, and there was no restriction on presidential order.
- Paragraph 2 of co 272, by which article 370 was amended by amending article 367, was ultra vires as the interpretation clause cannot be used for amendment.
- The President’s use of power was not mala fide, and no concurrence was needed with the state.
- Para 2 of co 272 in the exercise of power under 370(1)(d) applying all provisions of the Indian constitution to Jammu and Kashmir was valid.
- The president’s continuous exercise of power shows the gradual integration process was ongoing. Thus, co 273 is valid.
- The constitution of Jammu and Kashmir is operative and has been declared redundant.
- Presidential use of power, not mala fide
- SG made a statement that statehood will be restored to Jammu and Kashmir. We uphold the decision to carve out UT of Ladakh. We direct ECI to hold polls under section 14 of the reorganisation act and statehood at the earliest.
Article 370 and effects of its abrogation
Article 370 granted special autonomy to Jammu and Kashmir. It curtailed the central government’s legislative authority over the state. The now-revoked Article 370 allowed the state to formulate its own law, with specific exemptions in areas like finance, defence, foreign affairs, and communications.
In 1954, Article 35A was introduced under Article 370, empowering the Jammu and Kashmir government to define permanent residents. The said article, which has now been revoked alongside Article 370, prohibited individuals outside the state from establishing permanent residence, buying land, or holding certain positions in government offices.
Following the abrogation of Article 370, two Union Territories named Jammu and Kashmir (with a legislative body) and Ladakh (without a legislative body) were created. As assembly elections have not taken place in either of the UTs, they are currently being administered by Centre-appointed lieutenant governors.
In May 2022, the Jammu and Kashmir Delimitation Commission redefined electoral boundaries, names and the number of assembly seats. Delimitation is a precursor to future assembly elections. Reserved seats for scheduled tribes and representation for Kashmiri migrant communities were introduced alongside the delimitation process.
Furthermore, following the abrogation of Article 370, elections in Jammu and Kashmir opened for those who settled in the region and were previously deemed as “outsiders”. This inclusive move allowed West Pakistan refugees residing in the UT for 70 years to participate actively in the local elections.
The socio-political landscape of the region has changed extensively over the past four years. Almost zero incidents of stone pelting, paced-up infrastructure, and introduction of government schemes in the region are some of the examples of changes brought to J&K following the abrogation.
