Explainer On Article 370 Case In Supreme Court : Issues & Arguments Regarding J&K Special Status Abrogation

Nearly four years after the Central Government abrogated the special status of Jammu and Kashmir under Article 370 of the Constitution, the much anticipated hearing of the petitions challenging the decision will start in the Supreme Court on August 2, 2023.As the case - which had been lying dormant in the Supreme Court for over three years since its last listing in March 2020 - is now going to the final hearing stage, here is an explainer on the issues and the arguments raised by both the sides.What is Article 370?The Indian Independence Act of 1947 marked the end of British colonization in India and led to the partition of British India into the independent dominions of India and Pakistan. Alongside this, the Instrument of Accession (IoA) was introduced. The IoA allowed the rulers of princely states, which were under British paramountcy, to choose between joining India or Pakistan. The State of J&K signed the IoA with India to seek assistance in countering an invasion from Pakistan. The original accession covered three crucial matters: defense, foreign affairs, and communications. As India was drafting its Constitution, it was proposed that only those provisions of the Indian Constitution corresponding to the original IoA should apply to the State of J&K. Consequently, Article 370 was incorporated into the Indian Constitution. This article granted special status to J&K and permitted the state to draft its own Constitution. Moreover, it limited the legislative powers of the Indian Parliament concerning J&K, stating that articles of the Constitution, except those related to defense, foreign affairs, and communications, would apply to the state only with the concurrence of the State's constituent assembly.Article 370 was included in the Constitution on October 27, 1949, under Part XXI, titled "Temporary, Transitional, and Special Provisions." Initially intended as a temporary provision, it was expected to remain in effect until the formulation and adoption of the State of J&K's constitution. However, the State's constituent assembly dissolved itself on January 25, 1957, without recommending either the abrogation or amendment of Article 370, leaving the status of the provision uncertain.Over time, through judgments from the Supreme Court of India and the High Court of Jammu and Kashmir, Article 370 came to be considered as having acquired permanent status. This meant that to apply a central law to the state regarding subjects included in the IoA, "consultation" with the state government was required. On the other hand, for central legislation concerning matters beyond defense, foreign affairs, and communications, the "concurrence" of the state government was mandatory.Abrogation of Article 370Article 370(3) prevented the Indian parliament from amending Article 370 without the concurrence of the J&K Constituent Assembly. However, as mentioned above, the State’s Constituent Assembly was dissolved in 1957. Therefore, the revocation of J&K’s special status was executed in a two-step process through the promulgation of the Constitution (Application to Jammu & Kashmir) Order, 2019 on August 5, 2019. The implementation of these steps was aided by the fact that the State had been under the Presidential Rule since December 2018.First, the Constitution (Application to Jammu & Kashmir) Order, 2019, also known as the CO 272 order was passed. This order superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 and declared that all the provisions of the Constitution of India would apply to J&K. It also amended Article 367 of the Constitution. As Article 370 could only be amended by the recommendation of the J&K Constituent Assembly, the CO 272 order introduced a clause to Article 367. This clause stated that the expression "Constituent Assembly of the State," referred to in clause (2) of Article 370, should be read as the "Legislative Assembly of the State." Since there was no legislative assembly of J&K owing to its dissolution and the state was under Presidential rule, the recommendation of the Parliament was treated as equivalent to the recommendation of the legislative assembly. Also, CO 272 introduced further clauses in Article 367 to state that reference to the "Government of J&K" can be construed as the "Governor of J&K".Following this, the Central Government took the second step. A Statutory Resolution recommending the abrogation of Article 370 was passed by the Lok Sabha with a majority of 351 to 72 votes and later cleared by the Rajya Sabha. On August 6, 2019, based on the statutory resolution passed by the Parliament, President Ram Nath Kovind issued a notification (CO 273) stating that from the 6th August 2019, all clauses of Article 370 would cease to be operative. This effectively revoked the special status of Jammu and Kashmir.The President invoked the powers under Article 370(3) to issue these notifications. Article 370(3) gives President the power to declare that this article shall cease...

Explainer On Article 370 Case In Supreme Court : Issues & Arguments Regarding J&K Special Status Abrogation

Padmakshi Sharma

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