What is Article 370 of the Constitution of India?

 

The Supreme Court of India is scheduled to review a series of petitions that question the government’s move to abolish the special status granted to Jammu and Kashmir (J&K). It will consider petitions that question the Union government’s move to cancel the special status of Jammu and Kashmir (J&K) and divide the state in 2019, almost four years after Article 370 of the Constitution was repealed. A Constitution Bench consisting of Chief Justice of India (CJI) D.Y. Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant, will deliberate on the procedural aspects of the case.

Article 370

Article 370 recognizes the unique position of Jammu and Kashmir by granting it special status, which includes autonomy and the power to enact laws specifically for its permanent residents. It allows the state to have its own constitution and provided a unique set of powers. Moreover, the central government can extend central laws pertaining to defense, external affairs, and communications in the state only after consulting with the state government.

The Emergence of Article 35A

Article 35A was inserted into the Constitution through a Presidential order in 1954 rather than an amendment passed by Parliament. Article 35A, which stemmed from Article 370, granted powers to the Jammu and Kashmir Assembly to define ‘permanent residents‘ of the state and confer special rights and privileges upon them.
The Jammu and Kashmir Constitution defined a ‘permanent resident’ as someone who was a state subject as of May 14, 1954, or had been a resident in the state for ten years by that date, with legally acquired property. Non-permanent residents were restricted from acquiring immovable property, government employment, scholarships, and other aid provided by the state government.

Abrogation of Article 370

On August 5, 2019, President Ram Nath Kovind issued a notification declaring the abrogation of Article 370. The notification modified the proviso of clause (3) of Article 370, replacing the “Constituent Assembly of the State” with the “Legislative Assembly of the State.” This change paved the way for the central government to abrogate the article without the existence of a Constituent Assembly in the state.

Contending Issues

The petitions that contest the nullification of Article 370 present various significant contentions. Among the primary arguments put forward are

Violation of Constitutional Procedure

Article 370 could only be amended with the recommendation of the J&K Constituent Assembly. However, the Presidential Order (CO 272) enabled the Union government to amend Article 370 without such a recommendation by altering the interpretation of Article 367, which defines the interpretation of terms in the Constitution. The petitioners argue that this procedural amendment violated the constitutional process.

Superseding Legislative Assembly

At the time of the abrogation, J&K was under President’s Rule, and the powers of the Legislative Assembly were vested in the Union Parliament. The petitioners contend that the abrogation was improper as it took place without the consent of the Legislative Assembly, which was essential for any amendment to Article 370.

Constitutional Validity

The petitions challenge the constitutional validity of the abrogation itself, arguing that it violated the basic structure of the Constitution. They argue that the abrogation significantly altered the federal structure and power-sharing arrangement between the Union and the State, which was an integral part of the original constitutional framework.

Impact on Kashmiri Residents

The petitions also highlight the impact of the abrogation on the rights and aspirations of the people of J&K. They contend that the revocation of the special status has led to a breach of trust, curtailment of fundamental rights, and a deterioration in the overall socio-political situation in the region.

Way Forward

The Supreme Court’s Constitution Bench is set to review a total of around 23 petitions submitted by lawyers, activists, politicians, and retired civil servants. Their examination related to the abrogation of Article 370 related issues will lead to the provision of procedural guidelines for the future progression of the case.