How Article 370 was Removed: A Crucial UPSC Study Guide

The removal of Article 370 stands as a significant milestone in India’s constitutional history, with profound implications for the country’s political landscape. For UPSC aspirants, understanding how Article 370 was removed is essential, as it sheds light on the dynamics of governance, constitutional amendments, and the balance of power within the Indian Union.

Explained: Abrogation of Article 370

Genesis, Implications, and Ameliorations

The Supreme Court of India has begun hearing arguments concerning the abrogation of Article 370 of the Constitution. A five-judge constitution bench of the Supreme Court on August 2 began hearing a batch of petitions challenging the abrogation of Article 370 and the bifurcation of the state of Jammu and Kashmir into two union territories. The amendment to Article 370 brought about four years ago by the president’s executive order issued on August 5 was, by all accounts, seismic. The Constitution of India was amended to apply to Jammu and Kashmir (J&K) and divided into two union territories: J&K and Ladakh.

This decision was made during the President’s rule in the absence of the elected state legislature. In the months leading up to and following the incident, civil liberties in the region were severely restricted.

In the hearing, Chief Justice of India (CJI) DY Chandrachud asked whether Article 370 is a provision that goes beyond the power to amend the Constitution. Echoing similar concerns, Justice B.R. Hawaii questioned whether Article 370 could be considered irrevocable, especially since the Constitution is a living document.

Senior advocate Kapil Sibal pointed out that the Presidential Order of 2019 [C.O. 272] invoked Article 368 of the Constitution to transfer the power to recommend the abrogation from the Legislative Assembly to the Constituent Assembly. As per the earlier judgment of the Court in the Kesavananda Bharti Vs State of Kerala (1973), this was not allowed.

History and Background

• On 17 October 1949, Article 370 was added to the Constitution of India as a “temporary provision” which allowed Jammu & Kashmir to make its constitution and limited the legislative powers of the Indian Parliament in the state.
• It was inserted as Article 306 A in the draft constitution by N Gopalaswami Ayyanar.
• Article 370 is explained in Chapter XXI of the Constitution of India entitled “Temporary, Transitional and Special Provisions”. It was announced that the Jammu and Kashmir Constituent Assembly would be empowered to advise on the extent to which the Indian constitution should apply to the state.
• The inclusion of Jammu and Kashmir, like other princely states, was on three issues: defense, foreign affairs, and communications.
• In the case of Jammu and Kashmir, state politicians decided to form a separate constituent assembly for the state. The representative of the Constituent Assembly of India wanted only the provisions of the Indian constitution to apply to the state in the instrument of accession and for the state constituent assembly to decide on other matters. The Government of India agreed to these demands.
• Accordingly, Article 370 was inserted into the Constitution of India, which provided that other articles of the Constitution empowering the Central Government would be applied in Jammu and Kashmir only with the consent of the State Constituent Assembly. These were “interim rules” that were to remain in effect until the country’s constitution is drawn up and adopted.
• However, the Constituent Assembly was dissolved on January 25^th, 1957, without recommending the repeal or amendment of Article 370. Therefore, the Article, which has been upheld by various judgments of the Supreme Court, has been held as a permanent feature of the Indian constitution. Supreme Court of India and Jammu and Kashmir, last in April 2018.
• Article 35 A originated from Article 370 and was inserted by a Presidential Order in 1954 based on the recommendation of the J&K Constituent Assembly. Article 35 A empowered the Jammu & Kashmir legislature to determine permanent residents of the state and their special rights and privileges.

Autonomy of Jammu and Kashmir

The subjects of legislation in the Indian constitution are divided into lists: Union List, State List, and Concurrent List.

• The Union Government holds the Union List which is a list of ninety-six subjects, including matters such as defense, military and foreign relations, the main transportation system, banking, stock exchange, and taxation.
• The State List of sixty-six articles, including prisons, agriculture, most industries, and some taxes, is available for the States to legislate.
• The Concurrent List, on which both the Center and the States can legislate contains criminal law, marriage, bankruptcy, labor unions, professions, and price control. If there is a conflict, the Union law prevails.
• The ‘residual power’, to make laws on matters not specified in the Constitution, rests with the Union.

In the case of Jammu and Kashmir:

• The ‘Union List’ and the ‘Concurrent List’ were initially limited to matters specified in the Instrument of Accession; later extended with the permission of the Provincial Government. The ‘Residual Powers’ continued to rest with the state rather than the Union.
• According to the State Autonomy Committee, ninety-four of the ninety-seven articles in the Union List applied to Jammu and Kashmir; The provisions of the Central Bureau of Intelligence and Investigation and preventive detention did not apply.
• Twenty-six out of forty-seven items apply to Jammu and Kashmir from the “Concurrent List”: marriage, and divorce, infants, and minors, transfer of non-agricultural properties, contracts and torts, bankruptcy, trusts, courts, family planning, and charities are not included, meaning that the state has exclusive authority to legislate in these matters.
• The right to legislate on elections to state bodies also rested with the State.

Abrogation of Article 370 and Change of Status for J&K

On August 5, 2019, Home Minister Amit Shah announced in the Rajya Sabha that the President of India has issued the Constitution (Application to Jammu and Kashmir) Order (C.O. 272) under Article 370 of the Constitution (Application to Jammu and Kashmir) Order, 1954. This means the abrogation of the separate Constitution of Jammu and Kashmir. The order was said to be issued with the “consent of the State Government of Jammu and Kashmir”, meaning the governor appointed by the Union government.

Now that Article 370 has been abrogated, Jammu & Kashmir is fully covered by the Constitution of India and all 890 Central Regulations. Jammu and Kashmir is considered a part of India in spirit and spirit after the abrogation of Article 370.

On 5 August 2019, Home Minister Amit Shah introduced the Jammu and Kashmir Reorganization Bill (2019) in the Rajya Sabha to change the status of the state of Jammu and Kashmir into the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh.

The next day, the bill was passed by the Lok Sabha by 370 votes against 70 (84%). The bill became law after being signed by the President.

The two union territories came into existence on 31 October 2019, which was celebrated as National Unity Day. The president of India appointed a Lt. Governor for the Union Territory of Jammu and Kashmir and a Lt. Governor for the Union Territory of Ladakh. Thus, the President’s Rule under Article 356 of the Constitution of India ended in the state of Jammu and Kashmir on the night of 30 October 2019.

Petitions against the Abrogation of Article 370

• On August 28, 2019, the Supreme Court of India agreed to hear several petitions seeking the abrogation of Article 370 and the subsequent division of Jammu and Kashmir into two Union Territories. A bench of five judges was formed for this.
• The court also issued a notice to the government in response to the request, rejecting the government’s request that this notice could be disclosed in an international forum such as the United Nations.
• In its verdict on a petition challenging the ban imposed in Jammu and Kashmir, the Supreme Court ordered a review of all restrictions on the use of Internet services. The court held that freedom of access to Internet services is a fundamental right under Article 19(1) of the Constitution of India.

August 2023: Arguments, Counter-arguments!

• The Supreme Court on August 2^nd began hearing a constitutional challenge in 2019 over the abrogation of Article 370 of the Constitution, which grants special status to Jammu and Kashmir.
• Arguing for the petitioners, senior advocate Kapil Sibal, indicating the genesis of the accession of Jammu-Kashmir to India, said Article 370 is usually referred to as a “temporary provision”.
• The petitioners, Sibal said, “stand here on the premise that integration of J&K into India is unquestionable, was unquestionable and always remains unquestionable. That was a given. Despite that, the whole structure was changed overnight through an unconstitutional process”.
• The core issue to be decided, he said, was whether Parliament could have assumed the role of the Constituent Assembly to make the amendments.
• “So long as it exists”, said the CJI and added that if Sibal’s argument is to be accepted, “370, which is a transitional provision, assumes the character of permanent provision because there is no Constituent Assembly of the state after 1957”.
• Reading the announcement made by Maharaja Hari Singh on March 5, 1948, Sibal said that the government had not signed the revised Agreement from December 1947 to September 1949 which indicated the continuation of the country’s special status. The senior advocate referred to the Constitution (Jammu and Kashmir Appeal) Order dated January 26, 1950, which stated that the provisions of the Indian constitution do not apply to the state unless they are invoked by a presidential order approved by the J&K government.
• Justice Surya Kant asked whether Article 370 was included under the “temporary and transitional provisions” section of the Constitution. Sibal reiterated that the temporary nature of Article 370 is linked to the existence of the Constituent Assembly, which played a role in its repeal.
• Sibal said such radical changes took the region away from representative democracy and placed it under the direct rule of the central government. He also expressed concern that state elections would not be held even though parliamentary elections were held three months after the bifurcation.

Way Forward

The arguments will continue to be opened and addressed in the coming days in front of the Chief Justice of India, D Y Chandrachud, along with his bench of learned Senior Judges. There shall be more disagreements, and hearings in the future beholding the destiny of the two Union Territories, and the people residing there.

The future of our Constitution will be greatly influenced by how courts handle arguments and how courts ultimately decide whether presidential orders are valid. the court may want to ensure that loyalty is consistent with moral values ​​and the system has been developed.