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Recently, The Supreme Court gave its verdict on the Union government’s 2019 move to amend Article 370 of the Constitution. The abrogation had ended the special status conferred to the erstwhile state of Jammu and Kashmir. The court held the Constitutional order that revoked Article 370 as valid.
ABOUT ARTICLE 370
TIMELINE OF EVENTS
SUPREME COURT OBSERVATION
Presidential Authority and Legal Process: The Court upheld the President's unilateral power to abrogate Article 370 under special circumstances, emphasizing that the abrogation was the result of a prolonged, collaborative effort for the full integration of Jammu and Kashmir into India.
Constitutional Implications: It declared the Jammu and Kashmir Constitution redundant, reinforcing the supremacy of the Indian Constitution and denying any internal sovereignty to J&K post-Accession.
Restoration of Statehood and Electoral Directives: The Centre committed to restoring statehood to Jammu and Kashmir and the Court directed the Election Commission to conduct Assembly elections by September 30, 2024.
Reorganization and Territorial Changes: The legitimacy of reorganizing Jammu and Kashmir into Union Territories of Ladakh and Jammu and Kashmir was upheld, though the Court didn't specifically examine the permissibility of this reorganization.
Presidential Powers Post-Assembly Dissolution: The Court recognized the continued authority of the President under Article 370(3) even after the dissolution of the J&K Constituent Assembly and the implementation of President’s Rule.
OUTCOME
MERITS OF SC JUDGMENT
Promotion of National Integration- Allowing a separate constitution, flag and powers to Jammu and Kashmir had created a sense of separate identity among the people of the state. This had been used to misguide youth and create a demand of separatism among them. The verdict paves a way for the National Integration of J&K with rest of India.
Aid in the fight against Terrorism- Owing to cross border terrorism, around 42 thousand people have lost lives in the state. The special status was considered an impediment in fight against terrorism. The verdict has bolstered the powers of the central government in its fight against terrorism in the valley by allowing the application of stringent anti-terror laws like UAPA.
Reduction of Corruption and graft- Article 370 resulted in poor anti-graft architecture in the state of Jammu and Kashmir. Anti-corruption agencies could not enter the state, which resulted in massive corruption, money laundering and hawala transactions. With the SC seal on the abrogation of Article 370, the PMLA and FEMA act can be stringently applied.
Promotion of economic development- Due to the application of Article 370, the land in the state could only be sold and bought by the permanent residents of the state. As a result, large businesses houses did not invest in the region owing to land concerns. The final stamp of SC, on Article 370, will attract greater investment in the state of J&K.
Effective implementation of affirmative policies- Various affirmative legislations such as Right to Education, Right to Information were not available to the citizens of Jammu and Kashmir. Also, the reservations benefits, to OBCs, SCs, STs were not available to the marginalised sections of the state. The SC Verdict will help in effective implementation of these affirmative policies.
CHALLENGES OF SC JUDGEMENT
Misuse of the President Rule- The majoritarian governments at the centre can misuse the President’s rule to bring irrevocable changes to the states like bifurcation of the state without consulting the state legislative assemblies. The president’s rule was imposed and the Parliament used its power to bifurcate of the state of J&K into two UTs of J&K and Ladakh, without consulting the state legislative assembly.
Undermine the federal principles- The Parliament can use its amending powers to undermine federalism and democratic processes. For ex- A backdoor amendment to an article of the Constitution by amending another article. Article 367 was amended to give effect to abrogation of Art 370.
Threat to Regional Identity- One of the primary rationales behind Article 370 was to respect and preserve the unique identity, history, and culture of the state of Jammu and Kashmir. This can raise insecurity among the regional communities being accorded special treatment or protection.
Harmonious Relations- The provision was intended to promote harmonious relations between the region of Jammu and Kashmir and the rest of India. The separatist elements can use this verdict to fuel separatism and radicalism in the state of Jammu and Kashmir.
Against the principle of Asymmetric federalism- Asymmetric federalism is enshrined in the Indian constitution, with some special provisions granted to certain states like North-Eastern States and Socio-economically backward states (Art 371). The Verdict has impinged upon the settled principle of asymmetric federalism.
WAY FORWARD
Since Art 370 has become a thing of the past, with SC upholding the abrogation of Art 370, we must look forward to restoring normalcy in the state of Jammu and Kashmir.
Set up Truth and Reconciliation Commission- The government of India must set up the Truth and Reconciliation Commission, as directed by the SC, to look into alleged violations of human rights by both state and non-state actors in J&K. It should be based on a dialogue and not become a criminal court.
Conduct Elections and restore the statehood of J&K- The Central government must ensure normalcy in the Valley for peaceful conduction of democratic elections and restoration of the statehood of J&K.
De-radicalization- More aggressive attempts must be made towards de-radicalization of youth in the valley.
Check the misuse of AFSPA- AFSPA provisions must be withdrawn in a phase bound manner from the areas which attain normalcy.
Focus on Development- The imminent focus of the government must be on promoting inclusive economic development of the region by effective implementation of the affirmative policies of the government.
The Supreme Court's verdict on Article 370 paves the way for a new chapter in Jammu and Kashmir, balancing the need for national integration and development with the imperative of respecting regional identities and democratic principles. The path forward must be navigated with a commitment to uphold constitutional values, ensure human rights, and foster a peaceful, inclusive future for the region.
PRACTICE QUESTION
Q: Despite the positive changes, several challenges continue to persist in the Kashmir Valley even after the abrogation of Article 370 of the Indian Constitution. Discuss.(15marks, 250 words)
