GS Paper 2
Syllabus: Constitution/ Federal features
Source: TH
Context: The Supreme Court, led by Chief Justice D.Y. Chandrachud, unanimously (5-0) upheld the abrogation of Articles 370 and 35A in Jammu and Kashmir.
Background of the issue:
Jammu and Kashmir was governed by Article 370, which exempted the state from certain provisions of the Indian Constitution. Introduced in 1949, it allowed Jammu and Kashmir to draft its own constitution and limited the legislative powers of the Indian Parliament in the state. Article 35A, stemming from Article 370, granted the Jammu & Kashmir legislature the power to define the state’s permanent residents and their special rights. This unique provision differed from the constitutional guarantees in place for other states in India.
The President had the authority to amend Article 370 through executive action. The special status was altered on August 5, 2019, through a Presidential Order, modifying Article 370 and reshaping the relationship between Jammu and Kashmir and the Indian Union.
Key Changes Brought Out by the Order of 2019 (Constitution (Application to Jammu and Kashmir) Order, 2019):
- Reorganization into Union Territories: The Jammu and Kashmir Reorganisation Bill, 2019 divided the state into two Union Territories: Jammu & Kashmir and Ladakh. Jammu & Kashmir will have an Assembly, while Ladakh will be a UT without a legislature.
- Political Representation: The UT of Jammu and Kashmir will have legislative powers except on subjects related to “public order” and “police.”
- Changes in Governance: Jammu and Kashmir will have a Lieutenant Governor instead of a Governor.
- Citizenship: Citizens of Jammu and Kashmir will no longer have dual citizenship. Article 35A, originating from Article 370, stands null and void
- Fundamental Rights: The Fundamental Rights of the Indian Constitution will apply to the citizens of the new Union Territory.
- All Indian laws apply: All laws passed by Parliament, including the Right to Information Act and the Right to Education Act, financial emergency (Article 360), IPC will be applicable.
- Abolishment of Special Status: Jammu & Kashmir no longer has a separate constitution, flag, or anthem.
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What did the recent SC judgment say?
| Judgement Points | Summary |
| J&K Sovereignty | J&K did not retain any element of sovereignty after its accession to India in 1947 and has always been an integral part of India |
| J&K Constitution’s Section 3 states it’s an integral part of India | |
| Article 370 Temporary | The SC emphasized that Article 370 is temporary, and was applied due to war conditions at the time of partition. |
| Article 370 was a transitional provision until the constituent assembly of state was formed. | |
| The Instrument of Accession clarified that Article 1 applied entirely to J&K. | |
| Proclamations Under President’s Rule | The SC confirmed the President’s power for irreversible changes (in Article 370) during the President’s Rule, subject to judicial and constitutional scrutiny. |
| SC upheld Presidential proclamations of 2019 that abrogated Article 370 and equated “constituent assembly of J&K”, as “Legislative Assembly of J&K.” | |
| Constitution of J&K Inoperative | The SC deemed the J&K Constitution unnecessary as the Indian Constitution applied entirely, rendering the state constitution inoperative. |
| State Election | SC directed the Election Commission of India to conduct Assembly elections by September 30, 2024 and the Centre to restore the statehood of J&K soon. |
| Truth and Reconciliation Commission | The SC recommended establishing a truth and reconciliation commission, similar to post-apartheid South Africa, to investigate human rights violations by both state and non-state actors. |
| TRC will investigate and report on violations of human rights at least since 1980s and recommend measures for reconciliation |
Impact of the SC judgment:
- Greater integration: The SC clarified that the region did not possess sovereignty. This will reduce the impetus to secessionism in J&K
- Political empowerment: Voting rights given to West Pakistan Refugees
- Inclusion: Reservation of seats for Kashmiri pandits and displaced people from Pakistan-occupied Kashmir.
- Economic impetus: People as well as investors outside J&K can now purchase land in Union Territory etc
- Reconciliation: SC’s recommendation of the establishment of a Truth and Reconciliation Commission to address human rights violations, will help the residents find out about their missing/killed loved ones.
Signs of Peace in J&K Post Article 370 Abrogation:
| Signs | Observations/Statistics |
| Reduction in Militancy | Cases of stone pelting and Injuries to security forces were reduced drastically |
| Reduction Injuries | Civilian injuries from pellet guns and baton charges dropped drastically. Also, law and order has greatly improved |
| Arrests of Militants and OGWs | Arrests of Over-Ground Workers (OGWs) increased from 82 in 2019 to 178 in 2021. |
| Overall Security Situation | 32% decline in terrorist acts from August 2019 to June 2022 compared to the preceding 10 months. |
To know more about the Impact of Article 370 abrogation (with data): Click Here
Negative changes in the security situation in Jammu and Kashmir: Click here
Conclusion:
As a guiding principle for reconciliation, Atal Bihari Vajpayee’s vision of Kashmiriyat, Insaniyat, and Jamhooriyat, reflecting the inclusive culture, humanitarian values, and democratic principles, should serve as a cornerstone for fostering unity and stability in the region. Simultaneously, the ongoing plan to achieve ‘zero-terror incidents’ by 2026, initiated in 2020, needs sustained effort for success.
Insta Links
Mains Links
The banning of ‘Jamaat-e-islaami’ in Jammu and Kashmir brought into focus the role of over-ground workers (OGWs) in assisting terrorist organizations. Examine the role played by OGWs in assisting terrorist organizations in insurgency affected areas. Discuss measures to neutralize the influence of OGWs. (UPSC 2019)
To what extent is Article 370 of the Indian Constitution, bearing marginal note “Temporary provision with respect to the State of Jammu and Kashmir”, temporary? Discuss The future prospects of this provision in the context of Indian polity. (UPSC 2016)
Prelims Links:
Siachen Glacier is situated to the (UPSC 2020)
(a) East of Aksai Chin
(b) East of Leh
(c) North of Gilgit
(d) North of Nubra Valley
Ans: D
