Source: Indian Express

Introduction

Recently the Supreme Court of India acting as the guardian of the constitution gave its judgment which it reserved on 5^th September 2023. A five-judge constitutional bench of Chief Justice of India (CJI) DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant unanimously upheld the abrogation of Article 370 and Article 35A in the case of In Re: Article 370 of the Constitution (2023).

What were the Major Issues Framed by the Supreme Court in In Re: Article 370 of the Constitution Case?

• Whether the provisions of Article 370 were temporary in nature or whether they acquired a status of permanence in the Constitution?
• Whether the entire Constitution of India could have been applied to the State of Jammu and Kashmir in exercise of the power under Article 370(1)(d)?
• Whether the abrogation of Article 370 by the President in exercise of the power under Article 370(3) is constitutionally invalid in the absence of a recommendation of the Constituent Assembly of the State of Jammu and Kashmir as mandated by the proviso to clause (3)?
• Whether the Proclamation which was issued by the President under Article 356 of the Constitution on 19^th December 2018 and the subsequent extensions are constitutionally valid?
• Whether the Jammu and Kashmir Reorganization Act, 2019 by which the State of Jammu and Kashmir was bifurcated into two Union Territories (Union Territory of Jammu and Kashmir and Union Territory of Ladakh) is constitutionally valid considered Article 3 of the Constitution of India?
• Whether during the tenure of a Proclamation under Article 356 the status of the State of Jammu and Kashmir as a State under Article 1(3)(a) of the Constitution and its conversion into a Union Territory under Article 1(3)(b) constitutes a valid exercise of power?

What were the Contentions Against the Abrogation of Article 370?

• The proclamation of Governor’s Rule in Jammu & Kashmir was challenged as void by the petitioners.
  • The petitioners said that no opportunity was afforded to the other parties to demonstrate strength in the house.
• As mentioned in the judgment the petitioners said that unilateral exercise of the powers under Article 356 sets a dangerous precedent and raises the apprehension that such a treatment can be extended to any other state of the country in the exercise of emergency powers under the Constitution.
  • It renders the federal structure susceptible to the whims of the political party in power.
• Article 370 was of permanent nature and the state was supposed to be governed by two constitutions that are Constitution of India and Constitution of Jammu & Kashmir.
  • Upon the enactment of the Constitution of Jammu and Kashmir, the Constituent Assembly became functus officio and as such, Article 370 became permanent.

What were the Contentions in Favour of the Abrogation of Article 370?

• The Union of India (UOI) contended that it was open to the President to take a final stock of the exercise of the authority under Article 370(1)(d).
• The UOI said that Article 370 was conceived and designed to aid the constitutional integration process on the same lines as it happened with other states.
• The abrogation of Article 370 brings the residents of Jammu and Kashmir at par with the citizens residing in the rest of the country and confers them with all rights flowing from the entire Constitution as well as hundreds of beneficial legislations.
  • Therefore, applying the Constitution of India to the State can never be an “arbitrary act”.
• The State Constitution does not establish a republican form of government in its entirety as it was dependent on the real sovereign document i.e., the Constitution of India.
  • To become a fundamental document, a constitution must necessarily include several facets of undisputed sovereignty including the power to acquire new territory which, in itself includes power to “cede” its own territory.
• Under Article 3, Parliament has the power to convert a State into two Union territories.
• Article 370 is not a part of the basic structure of the Constitution of India.
• Article 35A is in violation of fundamental rights of the citizens of other parts of the country.

What are the Conclusions given by the Supreme Court in In Re: Article 370 of the Constitution Case?

• The SC clearly quoted that Article 370 of the Constitution of India was a feature of asymmetric federalism and not sovereignty.
• The court said that Article 370 was enacted as a transitional provision and did not have permanent character.
• The abrogation of Article 370 does not negate the federal structure, as the citizens living in Jammu and Kashmir do and will enjoy the same status and rights as given to citizens residing in other parts of the country.
• SC in respect of Article 370(3) said that it contained the mechanism to bring the temporary arrangement to an end, and in turn, to de-recognize the internal sovereignty of the State and apply the Constitution of India in toto.
• The SC finally considered the step towards constitutional integration.