Revision as of 05:30, 2 January 2024

Dilution of after 1970

A backgrounder

Dhananjay Mahapatra, August 3, 2023: The Times of India

New Delhi: When Pakistanbacked attacks made then J&K monarch Hari Singh to hurried abandon the dream of keeping his princely state independent and sign the Instrument of Accession on October 26, 1947, he had handed over to India full control over only three subjects — defence, external affairs and communications. 
 In his letter to then governor general Lord Mountbatten pleading for accession to India, Singh had mentioned Pakistan-backed fighters overrunning the state.


“The number of women who have been kidnapped and raped makes my heart bleed. The wild forces thus let loose on the state are marching on with the aim of capturing Srinagar. . . as the first step to overrunning the whole state,” he said.

Part of a five-judge bench-led by CJI D Y Chandrachud which is hearing the challenge to abrogation of Article 370, Justice Sanjay Kishan Kaul, whose ancestry is deeply rooted in Kashmir, said, “I understand the infiltrators were seven miles from Srinagar (when Indian forces stopped them and later evicted them). ”

Appearing for National conference leader Moham- mad Akbar Lone, senior advocate Kapil Sibal said the Instrument of Accession allowed the government of India to have control over defence, external affairs and communications.

However, he admitted that over the years, Parliament has passed as many as 53 amendments to the Constitution (Application to J&K) Order, 1950. This means apart from the three major subjects of defence, external affairs and communications, Parliament has steadily applied the provisions of the Constitution to Jammu and Kashmir, despite the state’s Constituent Assembly framing a separate constitution for J&K in 1957.

Of the total 54 such orders, including the first one in 1950, 52 were passed by Parliament till 1996, a period of nearly five decades when Congress was at the helm of governance in the country. The Constitution (Application to J&K) Amendment orders in 2017 and 2019 were passed during the NDA regime. The 2017 order extended the GST regime to the state.

The 1950 order said the government of India would have power to make laws that would apply to J&K on subjects relating to all matters of defence and armed forces; arms, firearms and explosives; atomic energy; preventive detentions relating to defence, foreign affairs and security of India; foreign affairs, diplomatic relations and UN; extradition; admission, emigration and expulsion from India; pilgrimage to places outside India; railways; airways; posts and telegraph; trade and commerce with foreign countries; salaries of MPs from J&K; any investigation on subjects aforementioned.

SC upholds Modi governments decision to amend article 370

AmitAnand Choudhary, Dec 12, 2023: The Times of India

New Delhi : A five-judge constitution bench unanimously upheld the Narendra Modi government’s 2019 decision to scrap the nearly 70-year-old special status for Jammu and Kashmir under Article 370 and its bifurcation into two Union Territories, holding that integration of the border state with the country was “unconditional and complete”, and rejecting the argument that it ever enjoyed internal sovereignty.


In a boost to PM Modi ahead of the 2024 Lok Sabha elections, CJI D Y Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant held that Article 370 (3) empowered the President (read the Centre) to unilaterally issue a notification for abrogation of special status and that power remained undimmed by dissolution of the Constituent Assembly of J&K.


The bench asked for restoration of J&K’s statehood “at the earliest and as soon as possible” and for assembly elections to be held by September 2024, while upholding the decision to hive off Ladakh as a Union Territory.


The reasoning marked a fatal blow to the plea of the challengers that J&K’s special status could be revoked only with the concurrence of the state Constituent Assembly and with that body gone, it had acquired permanence.


It was a comprehensive victory for the Centre. The court framed 10 questions to answer all aspects of the challenge by the petitioners and upheld the Centre’s contention on all counts, holding that the landmark decision of August 5, 2019, marked the culmination of the process of integration of the state and clearing the way for application of the entire Constitution to it. The bench delivered three concurring judgments — by the CJI for himself and Justices Gavai and Kant; and by Justices Kaul and Khanna. They ran into 476 pages.

A backgrounder

Dec 12, 2023: The Times of India

ART 370 FOR INTEGRATION, NOT DISINTEGRATION: SC

WHAT ART 370 SAYS ABOUT SCRAPPING PROVISIONS


Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative... Provided that the recommendation of the Constituent Assembly of the State... shall be necessary before the President issues such a notification 


➤ Petitioners said that since J&K constituent assembly had ceased to exist, Art 370 became a permanent feature


➤ SC says ‘President had the power to issue a notification declaring that Article 370(3) ceases to operate without the recommendation of the constituent assembly’. Also says ‘President did not have to secure the concurrence’ of the state govt or Union govt acting on behalf of the state govt 


WHAT SC JUDGMENT SAYS


1 Erstwhile J&K state did not have internal sovereignty different from other states of the country after it became part of India.


2 ‘Exercise of presidential power to issue constitutional order abrogating Article 370 of Constitution’ is valid.


3 Constituent assembly of J&K was never intended to be a permanent body; Article 370 was a temporary provision.

4 Creation of the UT of Ladakh upheld; not necessary to look into the same for UT of Jammu & Kashmir since it is temporary.


5. EC to conduct elections to J&K legislative assembly by Sept 30, 2024. ‘Restoration of statehood shall take place at the earliest h Bench pronounced 3 separate and concurring judgments hJustice S K Kaul sought ‘impartial truth & reconciliation’ panel to probe human rights violations by state and non-state actors.