Why in News?

• A five-judge bench of the Supreme Court fixed the date of 5th of August 2023 to hear the petitions challenging the dilution of Article 370 of the Constitution of India, 1950.
  • The petitions involving important legal and constitutional questions will be taken by a bench led by Chief Justice of India (CJI) D Y Chandrachud and comprising of Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant.

Background

• On August 05, 2019, the Central Government issued an order (Presidential Order) amending the Constitution (Application to Jammu & Kashmir) Order, 1954 and superseding it with the Constitution (Application of Jammu & Kashmir) Order, 2019.
• The Central Government also amended Article 367 of the Constitution of India to add new clause (4), making the Constitution of India directly applicable to Jammu & Kashmir.
• As a result, all clauses of Article 370 ceased to operate, except clause 1, which was amended to state that the Constitution of India applies to the State of J&K. This scrapped the special status for J&K.
• Subsequently, the Jammu & Kashmir (Reorganization) Act, 2019 bifurcated J & K into two Union Territories.
• The hearing of the current matter started in December 2019 challenging the constitutionality of the abrogation of Article 370.
  • The petitions also challenge the J&K Re-organization Act, 2019 which bifurcated J&K into Union Territories of J&K and Ladakh.
• An affidavit by the central government was filed in the matter of Shah Faesal and Ors. v. Union of India and Anr regarding the present status of Jammu and Kashmir after the abrogation of its special status.
  • However, now the current petition will be referred to as In Re: Article 370 of the Constitution for all purposes.

Court Observation

A Constitution Bench said the Centre’s fresh affidavit claiming that Jammu and Kashmir is witnessing an “unprecedented era of peace, progress and prosperity” following the abrogation of Article 370 has “no bearing on the constitutional challenge” to the repeal of the provision.

Constitutional Challenges

• To challenge the Presidential Orders, the petitioners have invoked the ‘doctrine of colourability,’ which prohibits the passing of legislation seeking to doindirectly something not allowed to be done directly.
• Article 370(3) prohibited the President from amending Article 370 without the concurrence of the Constituent Assembly. However, the two Presidential orders in effect did so without the Assembly’s concurrence, thereby subjecting them to a constitutional challenge.
• The petitioners have also argued that the 2019 Act is unconstitutional since Article 3 of the Constitution does not give the Parliament powers to downgrade federal democratic States into a less representative form such as a Union Territory.
• Several petitions also contend that in a federal democracy, the right to autonomous self-government is a fundamental right under Part III of the Constitution and cannot be taken away without adhering to the due procedure established by law.

Legal Provisions

Article 370 of the Constitution of India, 1950

• On October 17, 1949, Article 370 was added to the Constitution of India, as a 'temporary provision', which exempted Jammu & Kashmir, permitting it to draft its own Constitution and restricting the Parliament of India's legislative powers in the state.
• Article 370 provided for application of Article 1 and Article 370 of the Constitution of India to Jammu & Kashmir.
• Other provisions of the Constitution did not automatically extend to Jammu & Kashmir but clause (1)(d) of Article 370 empowered the President of India to extend them through an executive order with the concurrence of the Government of Jammu & Kashmir.
• Article 370 was abrogated on 5th August 2019.
• Article 35A stems from Article 370 and was introduced through a Presidential Order in 1954, on the recommendation of the J&K Constituent Assembly.
  • Article 35A empowers the Jammu & Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.

Jammu and Kashmir Reorganization Act, 2019

• It is an act by the Parliament of India where the State of Jammu and Kashmir was bifurcated into two union territories — Jammu & Kashmir and Ladakh.
• The Union Territory of Jammu and Kashmir has a legislative assembly.
• Whereas the Union Territory of Ladakh does not have a legislative assembly and is administered by the Lieutenant Governor alone.
• The Union Territory of Ladakh will include the districts Leh and Kargil which, in effect, ceased to be part of the existing state of Jammu and Kashmir.
• The remaining territories remained with Jammu and Kashmir after the bifurcation.
• Representation in the House of People - Out of the six Lok Sabha seats in the state of Jammu and Kashmir, five remained with the Union Territory of Jammu and Kashmir and one went to the Union Territory of Ladakh.
• The Election Commission may conduct Lok Sabha elections for both the Union Territories as per the allocation of seats specified in the Delimitation of Parliamentary Constituencies Order, 1976 as amended by this act.