Context: The Supreme Court (SC) Constitution bench led by CJI pronounced its verdict on petitions challenging the abrogation of Article 370 and bifurcation of the erstwhile state of Jammu and Kashmir into two Union territories. 

Supreme Court Verdict On Article 370 Abrogation: Key Highlights

• Key Aspect of Decision: The SC upheld the government’s decision to suspend Article 370 and ordered that the parliament hold elections in the assembly by September 30 next year. 
  • The bench also affirmed Ladakh’s reorganization as a Union Territory. 
• Validity of Presidential Order: The court also held the validity of the Constitution (Application to Jammu & Kashmir) Order, 2019 for the abrogation of Article 370.

About Article 370

• Article 370 of the Constitution gave special status to Jammu and Kashmir in the Indian Union.
• It restricted the Centre’s legislative powers concerning the state and gave the state legislature to make its laws in all matters except for finance, defence, foreign affairs, and communications.

Article 35A

• Presidential Order: It was introduced through a presidential order in 1954 to continue the old provisions of the territory regulations. 
• Permanent Resident of State: It empowered the Jammu and Kashmir state legislature to define permanent residents.
• Prohibit Outsider: It forbade outsiders from permanently settling, buying land, holding local government jobs, or winning education scholarships.
  • Gender Discriminatory: It also barred female residents of Jammu and Kashmir from property rights if they married a person from outside the erstwhile state.

About Abrogation of 370

• Passing of Presidential Orders: Two Presidential Orders CO (The Constitution (Application To Jammu and Kashmir) Orders 272 and 273 were passed on August 5 and 6, 2019 respectively.
  • Article 370 (3) gave the President the power to declare that Article 370 shall cease to operate. Under this provision,  a recommendation of the J&K Constituent Assembly was necessary for the President to issue such a declaration. However, the State’s Constituent Assembly was dissolved in 1957. 
  • Constitution (Application to Jammu & Kashmir) Order, 2019/CO 272 order:  It was passed as a first step before the abrogation of Article 370.
  • It superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 and declared that all the provisions of the Constitution of India would apply to J&K. 
  • Amendment to Article 367: The CO 272 order amended Article 367 of the Constitution and introduced a clause to Article 367 which stated that the expression “Constituent Assembly of the State,” referred in clause (2) of Article 370, should be read as the “Legislative Assembly of the State.”
  • Change in recommending Body: This changed the recommending body from the Constituent Assembly to the Legislative Assembly.
  •  Since there was no legislative assembly of J&K owing to its dissolution and the state was under Presidential rule, the recommendation of the Parliament was treated as equivalent to the recommendation of the legislative assembly.
  • Redefining Government: CO 272 introduced further clauses in Article 367 to state that reference to the “Government of J&K” can be considered as the “Governor of J&K”. 
  • Following this, the Parliament passed a Statutory Resolution recommending the abrogation of Article 370.
• Constitution (Application to Jammu & Kashmir) Order, 2019/CO 273 order: The President issued CO 273 under Article 370 (3) according to which,  all clauses of Article 370 would cease to be operative from 6th August 2019. Thus revoking the special status of Jammu and Kashmir.

Impact of Abrogation of Article 370

• Applicability of Indian Constitution to J&K: Under these, the entire Constitution of India was made applicable to J&K, and all provisions of Article 370 were declared null and void.
• End of Special Status: The abrogation ended the special status conferred to the erstwhile state of Jammu and Kashmir. The Centre reorganized J&K into two Union Territories – Jammu, Kashmir, and Ladakh.

Arguments Against Revocation of Article 370

• Article 370 as a Permanent Clause: Article 370 was no longer a “Temporary Provision” and had assumed permanence after the Constituent Assembly of Jammu and Kashmir’s dissolution.

• Authority to Repeal Article 370: It was contended that the clause could not be repealed following the dissolution of the Constituent Assembly, whose approval was needed to repeal Article 370.
  • They argued that Article 354 of the Constitution forbids the Parliament from acting as Jammu and Kashmir’s legislature, thus, it had no power to repeal Article 370.
  • Power under Article 356 could not be used to bring about irreversible constitutional changes.
• Powers of the President under Article 370(1) (d): The President’s power under the Article was not a “constituent power” but merely a power to apply provisions with “modifications and exceptions.” 
  • Thus, Article 370 could only be abrogated if a proposal for its resolution originated from the State’s Constituent Assembly.
• Bifurcation of State: The Petitioners argued that the bifurcation of the State into two Union Territories – Jammu and Kashmir, and Ladakh violated Article 3 of the Constitution.
  • Article 3 limits the extent to which the federal nature of the Union could be reduced. 
• Applicability of the Constitution of J&K: They argued that the Centre’s action violated Article 147 of the Constitution of J&K. 

• • As per Article 147, limited amendments to Articles 3 and 5 of the J&K constitution could be made. The constitutions of J&K and India were parallel and independent of one another, and an executive exercise of power could not take precedence over constitutional authority.

Supreme Court Verdicts

• On the sovereignty of Jammu and Kashmir:
  • The court ruled that J&K did not retain any sovereignty after accession to India in 1947.
  • Despite the erstwhile ruler’s proclamation, subsequent proclamations affirmed integration, akin to other princely states.
• Status of Art 370 as temporary or permanent: The SC held that Article 370 was a temporary, transitional provision based on historical context and its Placement in Part XXI of the Constitution.
  • The provision was adopted because of the special circumstances in the state, which was experiencing war conditions.
• Temporary nature of Article 370: The court held Article 370 as a temporary, transitional provision based on historical context and its placement in Part XXI of the Constitution.
• Legality of the abrogation of Article 370: SC upheld both Presidential Proclamations of August 2019.
  • Impact on Legislative power of State Assembly:  The power granted by Article 370 (3) persisted even after the Jammu and Kashmir Constituent Assembly was dissolved.
    • Only the temporary power recognized in Article 370(3)’s provision, which gave the Constituent Assembly the power to make recommendations, ceased to exist upon the Constituent Assembly’s dissolution. 
    • It did not impact the President’s authority under Article 370(3).
• Legality of Actions taken under President’s Rule:
  • Ruling in S R Bommai v. Union of India: The SC cited the ruling from 1994, which declared the parameters of declaring presidential rule and a judgment from a smaller 9-judge bench(Bommai) is binding on a five-judge bench.
    • S.R. Bommai Case (1994) laid down the power of the President to dissolve a state under Article 356..
  • Rationale of Actions: Citing the Bommai ruling, the court held that the President’s action could be deemed lawful if it is not a mala fide or an irrational act.
• Struck down amendment using Article 367:  The court struck down the measure of using Article 367 of the Constitution for amending to change J & K’s “Constituent Assembly” into “Legislative Assembly.”

Criticism of Supreme Court Verdict

• Threat to Federalism: The powers of the Union government vis-à-vis the states seem to be enhanced by the verdict, which could be politically unstable given the ongoing conflicts between the appointed governor and the elected executive in states ranging from West Bengal to Tamil Nadu.
• Concerns of Parliamentary Sovereignty: There are concerns that the  Union can impose the President’s Rule first and then substitute parliamentary approval in place of the Assembly even for highly divisive issues like the splitting of a state. 

Conclusion:

• Though the SC upheld the Abrogation of Article 370, its direction of  the restoration of the statehood of J&K and early conduct of assembly elections recognizes the supremacy of the democratic political system.