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Mahesh

16/12/23 10:14 AM IST

Supreme Court’s verdict upholding the abrogation of Article 370

In News
  • A Constitution Bench of the Supreme Court  unanimously upheld the power of the President to abrogate Article 370 of the Constitution, which in August 2019 led to the reorganisation of the State of Jammu and Kashmir (J&K) into two Union Territories and denuded it of its special privileges.
Article 370- temporary provision
  • The court held that Article 370 was meant to be a ‘temporary provision’ for two primary reasons.
  • First, it served a transitional purpose which was to make an interim arrangement to establish a Constituent Assembly of J&K which would draft the State Constitution.
  • Second, it was meant to ease the integration of J&K into the Union of India in the light of the prevailing war-like situation in the State back in 1947.
  •  The court pointed out that the provision is placed in Part XXI of the Constitution, titled “Temporary, Transitional and Special Provisions” which shows the intention of the Constitution framers.
  • The provisions were transitional so as to facilitate the transfer of power from the institutions of governance which were functioning under the Government of India Act 1935 to the duly constituted institutions which would take over after the commencement of the Constitution.
  • Underscoring that J&K became an integral part of the territory of India with the adoption of the Constitution on January 26, 1950, the Chief Justice observed— “Any interpretation of Article 370 cannot postulate that the integration of Jammu and Kashmir with India was temporary”.
Supreme Court Observations
  • The court underscored that the operation of this paragraph ceased to exist following the proclamation issued by Karan Singh on November 25, 1949, the ruler of Jammu and Kashmir, which stipulated that the Constitution of India would govern the relationship between J&K and the Union and had the effect of a ‘merger’ like any other princely state.
  • Moreover, the provisions of the Indian Constitution would, according to the Proclamation, supersede and abrogate all other constitutional provisions inconsistent with it which were then in force in the State.
  • This, the majority opinion stated, reflected the “full and final surrender of sovereignty by Jammu and Kashmir, through its sovereign ruler, to India”. 
  • The Chief Justice also outlined that, unlike the Constitution of India, ‘there is a clear absence’ in J&K’s Constitution of a reference to sovereignty.
  • He highlighted that Article 370 was merely a ‘feature of asymmetric federalism’ similar to other provisions in the Constitution such as Articles 371A to 371J — examples of special arrangements for different States.
President's Rule
  • Article 356 authorises the declaration of President’s Rule in a State on the receipt of a report from the Governor about the failure of the constitutional machinery.
  • When a Proclamation under Article 356 is in force, there are innumerable decisions which are taken by the Union Government on behalf of the State Government for the purpose of day-to-day administration.
  • Every decision and action taken by the Union Executive on behalf of the State is not subject to challenge. Opening up challenge to every decision would lead to chaos and uncertainty. It would in effect put the administration in the State at a standstill.
  • The Chief Justice held that the power of the Parliament in a State under the President’s rule was not restricted to mere lawmaking. It also extended to executive action.
  • The President had issued successive executive orders leading to the abrogation of Article 370 in 2019.
  • The court made it clear that neither the President nor the Parliament would be “impeded by an absence of competence” while assuming the legislative powers of the State legislature during the operation of the President’s Rule.
Article 370 & 367
  • Article 370(3) of the Constitution stipulates that a Presidential Order abrogating the provision can only be issued pursuant to the recommendation of J&K’s Constituent Assembly.
  • However, the Constituent Assembly dissolved in 1957 without extending any such recommendation as a result of which the President of India was so long powerless to abrogate Article 370.
  • The Chief Justice pointed out that the fundamental difference between a ‘Constituent Assembly’ and a ‘Legislative Assembly’ renders the modification of Article 367 a modification of Article 370(3), which has an effect that is ‘appreciable and substantive’.
  • He cautioned that the consequces of permitting amendments through such a circuitous manner would be disastrous.
Source- The Hindu

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