Supreme Court (SC) Decision on “Article 370”

Supreme Court (SC) Decision on “Article 370”

Important for Prelims:

Part XXI Article 370, Jammu and Kashmir (J&K), Special Status, Article 370(1)(c), Article 1

Important for Mains:

GS-2: Origin of Article 370 and inclusion in the Constitution, significance and logic behind Article 370, related controversies and criticisms

13 Dec.2023

Why in news:

Recently, a five-judge Constitution bench headed by Chief Justice of India (CJI) DY Chandrachud unanimously upheld the Central government's 2019 decision to abrogate Article 370 of the Constitution, which had provided special status to the erstwhile state Jammu and Kashmir (J&K).

  • The Supreme Court said in its decision that Article 370 was a temporary and historical provision which can be abrogated at any time to maintain the unity and sovereignty of the country.

About Article 370:

  • Article 370 is one of the most controversial and controversial provisions in the Constitution of India. It grants special autonomy to the region of Jammu and Kashmir, giving it its own constitution, flag and powers to take important decisions.
  • This article was mentioned in Part XXI of the Indian Constitution, titled "Temporary, Transitional and Special Provisions".
  • Article 370 mentioned in the Constitution has been the subject of political, legal and social discussion since its inception.

In this article, we will discuss the origin, provisions, significance and controversies related to Article 370.

  • Jammu and Kashmir, located in the northern region of the Indian subcontinent and a part of the wider Kashmir region, has been the focus of conflict between India, Pakistan and China since independence in 1947.
  • The region was granted special status under Article 370 of the Indian Constitution from 1952 to October 31, 2019.
  • Under the special status, Jammu and Kashmir was given the privilege of its own constitution, state flag and internal administrative autonomy.
  • Origin of Article 370 and inclusion in the Constitution:
  • Article 370 came into existence as a result of negotiations between the leaders of Jammu and Kashmir and the Government of India during the process of India's merger into the Dominion of India after independence in 1947.
  • In October 1947, the ruler of Kashmir at the time, Maharaja Hari Singh, signed the Instrument of Accession, which outlined three specific areas in which Jammu and Kashmir would cede authority to the Government of India. These areas were: 1. Foreign Affairs, 2. Defence, 3. Communications
  • In March 1948, Maharaja Hari Singh appointed Sheikh Abdullah as Prime Minister of the Provisional Administration of the State. Subsequently, Sheikh Abdullah and three other associates became part of the Indian Constituent Assembly in July 1949. Together, they worked to negotiate the special status of Jammu and Kashmir, leading to the approval of Article 370. It was Sheikh Abdullah who played a key role in drafting the controversial clause that grants special autonomy to the state.
  • Article 370 bans the application of Indian laws in Jammu and Kashmir. The jurisdiction of the Parliament is limited to matters relating to defence, foreign affairs, finance and communications, while other provisions of the Indian Constitution do not automatically apply to the state unless approved by its own government.
  • Residents of Jammu and Kashmir are governed by different citizenship, property and fundamental rights laws than the rest of India. Article 370 prevents residents of other states from purchasing immovable property in Jammu and Kashmir. Additionally, Article 370 does not empower the Center to declare financial emergency in the state.
  • It is important to highlight that Article 370(1)(c) specifically mentions the application of Article 1 of the Indian Constitution in Kashmir. Article 1 lists the states of the Union, indicating that Jammu and Kashmir is bound to the Indian Union by Article 370. Unless new overriding laws are made, the removal of Article 370, which can be done through a presidential order, will make the state independent from India.
  • ​ Both India and Pakistan claim full sovereignty over the Himalayan region of Kashmir. The region, formerly known as Jammu and Kashmir, became part of India following the partition of the subcontinent following the end of British rule in 1947. After a war over the region between India and Pakistan, a ceasefire line was agreed upon, giving them control over different parts of the region.
  • The Indian-controlled state of Jammu and Kashmir has seen three decades of violence due to a separatist insurgency against Indian rule.
  • Other provisions of the Indian Constitution do not automatically apply to Jammu and Kashmir unless explicitly approved by its own government. This unique arrangement was designed to respect the unique identity and history of the region while integrating it into the broader framework of the Indian federal structure.

Revocation of Article 370:

  • On August 5, 2019, the Government of India abrogated Article 370, in force since 1954, by a presidential order.
  • The order was based on a proposal that received a two-thirds majority in both houses of the Indian Parliament.
  • As a result, all clauses of Article 370, except clause 1, were inoperative by a subsequent order on 6 August.
  • Additionally, the Indian Parliament also approved the Jammu and Kashmir Reorganization Act, 2019, which led to the bifurcation of the state of Jammu and Kashmir into two union territories: Jammu and Kashmir and Ladakh. This restructuring took effect on October 31, 2019.
  • Following the government's intention to abrogate Article 370 of the Constitution, the Supreme Court of India received a total of 23 petitions. In response, a five-judge bench was formed to address the legal challenges. This bench justified the repeal of this article.

Significance and logic behind Article 370:

  • To respect and preserve the unique identity, history and culture of the state of Jammu and Kashmir. This provision acknowledges the distinctiveness of the territory and allows it to have its own constitution, flag and important decision-making powers.
  • This provision addresses the unique aspirations of the history and people of Jammu and Kashmir.
  • Article 370 promotes federal spirit and national unity by granting special autonomy to Jammu and Kashmir within the framework of the Indian Constitution.
  • Article 370 plays a role in protecting the territorial integrity of Jammu and Kashmir within the Indian Union.
  • This provision promotes harmonious relations between the Jammu and Kashmir region and the rest of India.
  • Article 370 exemplifies India's commitment to democratic principles by respecting the choice of the people of Jammu and Kashmir for their own Constitution and laws.
  • It exemplifies the idea of “unity in diversity” by accommodating the specific needs of the region within the larger democratic framework.

Controversies and criticisms related to Article 370:

  • Critics argue that Article 370 has hindered the full integration of Jammu and Kashmir with the rest of India. This provision has encouraged separatism in the country.
  • This article provides special privileges and benefits to the residents of Jammu and Kashmir, including special rights in matters of property ownership, education and employment in the government. Critics argue that this has led to unequal treatment and discrimination against citizens from other parts of India.
  • Some critics argue that the special status given to Jammu and Kashmir has hindered its development. He believes that the region's autonomy has limited the central government's ability to effectively implement welfare and development programs.
  • In the last few years, there have been allegations of misuse of autonomy given under Article 370 by some political leaders. Critics claim that this has led to a lack of accountability and transparency in governance, resulting in mismanagement of resources and governance in the state.
  • This provision has been hindering the implementation of security and anti-terrorism laws in Jammu and Kashmir. Critics argue that this compromises national security and hinders the fight against terrorism.
  • Some political parties have opposed Article 370, arguing that it hinders uniformity and equal treatment of all states within the Indian Union.

Conclusion:

There is a need to launch a comprehensive outreach program to address the challenges arising from the action on Article 370 in Jammu and Kashmir. This program should focus on the inclusive culture, humanism and democracy of Kashmir.

Source: The Hindu

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Mains Question

Throw light on the origin and inclusion of Article 370 in the Constitution and the significance behind it, related controversies and criticisms.