"Decoding the Abrogation of Article 370: Basics, Key Features, and Constitutional Shifts"

Culminating in August 2019, the decision to abrogate Article 370 of the Indian Constitution marked a pivotal moment in the nation's legal and constitutional landscape. Widely deliberated, this move was aimed at fostering greater national unity, streamlining governance, and stimulating economic growth. Proponents highlight its potential to align Jammu and Kashmir with the constitutional fabric of the rest of India. Conversely critics raise concerns about the constitutional and legal aspects of the abrogation, emphasizing the uniqueness of the region's identity and the potential human rights implications.

The?Jammu and Kashmir Reorganisation Act, 2019, was passed by Parliament under Article 3 on 5th August 2019. This act bifurcated the state of Jammu and Kashmir?into two Union Territories: Jammu and Kashmir and Ladakh.

Before dwelling into what the Hon'ble Supreme Court held and stated while upholding the said act of abrogation, it is vital to understand as to what is Article 370 and what are its key features.

Article 370 of the Indian Constitution granted special autonomy to the region of Jammu and Kashmir. It was included in the Constitution in 1949 and became operative in 1950. The article was part of the "Temporary, Transitional and Special Provisions" in Part XXI of the Constitution, which deals with the temporary provisions with respect to the state of Jammu and Kashmir.

As mentioned above, on August 5, 2019, the Government of India, abrogated Article 370 through a President’s Constitutional Order 272 and a subsequent resolution passed in Parliament. This move resulted in abrogation of Article 370 and in the reorganization of the state into two separate union territories – Jammu & Kashmir and Ladakh. The special status and autonomy granted by Article 370 were effectively revoked.

Brief history and features of Article 370 Indian Constitution:

1.???? Autonomy for Jammu and Kashmir: Article 370 allowed Jammu and Kashmir to have its own Constitution and autonomy over internal matters, except for defense, communications, and foreign affairs, which remained under the jurisdiction of the Indian government.

2.???? Special Status: Jammu and Kashmir was the only state in India with the privilege of having its own constitution, and it enjoyed a special status within the Indian Union.

3.???? Article 35A: Under the authority granted by Article 370, the President of India issued an order in 1954, incorporating Article 35A into the Indian Constitution. This article granted the Jammu and Kashmir state legislature the power to define permanent residents of the region and provide them with special rights and privileges. This article was scrapped by the Government in 2019, thereby denying the special privileges granted.

What was held by the Hon'ble Supreme Court?

A five-judge Constitution bench, presided by the Chief Justice of India (CJI) DY Chandrachud, pronounced its 426-page verdict on the batch of petitions challenging the abrogation of Article 370 and bifurcation of the erstwhile state of Jammu and Kashmir into two Union territories.?

The top court upheld the government's decision to abrogate Article 370. The court did not adjudicate upon the validity of the reorganisation of the State into the Union Territories of J&K and Ladakh. However, it upheld the carving out of Ladakh as a Union Territory.?

The following are the key findings of the judgement:

1. Apex Court held that Article 370 was a temporary provision and that the State of J&K had no internal sovereignty. While declaring Article 370 to be temporary, the Court noted two factors - one was the war-like conditions and the second being the transitional purpose - that the Article was meant to provide for an interim arrangement until the Constituent Assembly of Jammu and Kashmir could frame its own constitution.?
2. The central question was whether Article 370 could be abrogated while J&K was under President’s rule, which had been in place since 2018. Chief Justice while relying on the landmark judgement of "S.R. Bommai v. Union of India, 1994 AIR 1918, 1994 SCC (3) 1", held that Governor can assume all or any role in the State legislature and such action can be judicially tested only in extraordinary matters.?? The SR Bommai case, a landmark judgment shaping the contours of President's Rule under Article 356, established crucial principles that resonate with the context of the abrogation of Article 370. The landmark judgement highlighted the power of governor under President's rule.?? The Hon'ble Court used the SR Bommai ruling to validate the President’s actions in J&K, applying the standards set by Justices PB Sawant and Jeevan Reddy for testing the validity of executive orders.?? Justice Sawant had set the standard of whether the exercise of power was mala fide or palpably irrational, while Justice Reddy observed that the advisability and necessity of the action must be borne in mind by the President.?? Further, the Chief stated that there are “hundreds if not thousands” of decisions that the President and Parliament must take, on behalf of the state legislature, to ensure effective day-to-day functioning in the state. Every such action, he held, cannot be open to judicial review, as it would “lead to chaos and uncertainty” and “put the administration in the State at a standstill.”
3. In a notable development, the court held that the President, wielding the power under Article 370(3), possesses the authority to unilaterally announce that Article 370 ceases to exist. Now, let's dive into what this means.?? Understanding Article 370(3): The court clarified that under Article 370(3), the President possesses the unilateral prerogative to proclaim the cessation of Article 370 without the imperative of securing concurrence from the State government, as traditionally mandated by the provisos to Article 370(1)(d).??? To delve into the legal nuances, Article 370(3) empowers the President to issue a notification unilaterally declaring the cessation of Article 370. This provision, often regarded as a constitutional lever, allows the President to bring about a substantial constitutional alteration without the need for collaborative decision-making.??? The distinctiveness of this judicial pronouncement lies in its assertion that the President, in exercising this authority, is not bound by the customary requirement of obtaining the concurrence of the State government.
4. The court upheld the Jammu and Kashmir Reorganisation Act, 2019, to the extent it carved out the Union Territory of Ladakh out of the State of J&K.
5. It was also directed by the Chief Justice to the Election Commission to conduct elections for the legislative assembly of Jammu & Kashmir by 30th September, 2024.
6. The Chief Justice's assertion that "Parliament is not a mere law-making body during President’s Rule" is intricately tied to Article 356 of the Indian Constitution. Article 356 empowers the President to impose President's Rule in a state if there is a breakdown of the constitutional machinery. ?? ?This interpretation implies that Parliament, acting in the absence of a functioning state government, can also engage in executive actions, which involve implementing policies and decisions, ensuring the smooth functioning of the state. In essence, the Chief Justice's stance implies a broader scope for Parliament's role during President's Rule, encompassing not only legislative functions but also executive actions, as deemed necessary to address the constitutional breakdown in the affected state.
7. Justice Kaul in his concluding pages of his judgement, recommended that the Union set up a “Truth and Reconciliation Commission” just like South Africa did in its post-apartheid era. ?? While recognizing that asking the Union to establish such a commission was beyond the court's scope, Justice Kaul underscored that transitional justice falls under transformative constitutionalism, involving both state and non-state actors. He emphasized a humanized approach for the commission, encouraging individuals to share their experiences openly without turning it into a criminal court.

CONCLUSION

In conclusion, the abrogation of Article 370 marks a pivotal moment in Indian constitutional history, unwinding the intricate tapestry of special autonomy granted to Jammu and Kashmir. This article extensively explores the historical roots and key features of Article 370, providing essential context to comprehend the significance of its 2019 revocation. The Hon'ble Supreme Court's decisive rulings, notably in cases like SR Bommai and subsequent judgments related to the abrogation, contribute nuanced layers to the legal discourse on this constitutional shift.

However, it is crucial to acknowledge the concerns raised, including potential impacts on regional identity, governance challenges, and security dynamics. Expressing sincere concern for the residents of Jammu and Kashmir, it is imperative to address the uncertainties they may face in the aftermath of this monumental change. As the nation grapples with these complex considerations, the profound redefinition of the constitutional landscape leaves an enduring imprint on India's diverse tapestry of governance, prompting ongoing reflection and engagement on the path ahead.

DISCLAIMER: It is essential to note that the foregoing analysis is not a representation of political opinion but is intended solely for the purpose of legal awareness and education.