- Prelims: Jammu and Kashmir-Issue, article 370, Article 3, Federalism, geographic location etc
- Mains GS Paper II: Importance of Jammu and Kashmir, security concerns, delimitation Commission etc
ARTICLE HIGHLIGHTS
- A Constitution Bench of the Supreme Court unanimously upheld the power of the President to abrogate Article 370
- Which led to the reorganization of the State of Jammu and Kashmir to two Union Territories and denuding it of its special privileges.
INSIGHTS ON THE ISSUE
Context
Article 370:
- The Constituent Assembly of Jammu & Kashmir was empowered to recommend which articles of the Indian Constitution should apply to the state.
- The J&K Constituent Assembly was dissolved after it drafted the state’s constitution.
- Clause 3 of the article 370 gives the President of India the power to amend its provisions and scope.
Article 35A:
- It 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.
- It appears in Appendix I of the Constitution.
Removal of Article 370:
- It commenced with a presidential order issued nearly four years ago.
- Amendments were made to make applicable the entirety of India’s Constitution to Jammu and Kashmir (J&K).
- The State was also sundered into two Union Territories: J&K and Ladakh.
- It was done when the State was under President’s Rule with no elected Legislative Assembly in place.
How was it altered?
- Part XIX of the Constitution, Article 367 comprises a set of general rules for interpreting the Constitution.
- Through this Article, the President’s order on August 5, 2019, amended with a view to transforming the existing status of J&K.
- It was done by adding a new clause to Article 367: It stipulated that wherever the term “Constituent Assembly of the State” was used in Article 370, it would now refer to the “Legislative Assembly of the State.”
- The basic thrust of Article 370 was abrogated, without complying with the precondition that Ayyangar thought obligatory.
What is the Judgement of the Supreme Court?
● Jammu and Kashmir did not Possess Sovereignty:
○ There is much evidence in Article 370 and the J&K Constitution to show that in regards to Kashmir, a merger agreement was not necessary to surrender its sovereignty.
- Article 370(1) applied Article 1 of the Constitution of India (where J&K was listed as a Part III State) with no modifications.
- Section 3 of the J&K Constitution explicitly states that “the State of Jammu and Kashmir is and shall be an integral part of the Union of India.”
- Section 147 of the Indian constitution prohibited any amendments to Section 3,further making the provision absolute.
- Article 370 is a Temporary Provision:
- The Constitution framers placed Article 370 with the temporary and transitional provisions contained in Part XXI.
- It pointed out that the Instrument of Accession (IoA) made it “abundantly clear” that Article 1 which stated that “India that is Bharat shall be a Union of States” applied in its entirety to J&K.
- Constitutional Validity of Proclamations Under President’s Rule:
- The President has the power to make “irreversible changes, including the dissolution of the State Assembly.
- The President’s powers are kept in check by“judicial and constitutional scrutiny.”
- The Constitution of J&K Stands Inoperative:
- It is no longer necessary for the Constitution of J&K through which only certain provisions of the Indian Constitution applied to J&K, to exist.
- Set up a Truth and Reconciliation Commission to Address Human Rights
Issues with the Judgment:
- It undermines the rights of States vis-à-vis the Union even on critical issues such as statehood and division
- It grants the President far larger powers over States than earlier envisaged
- It allows long-term political and territorial decisions to be made under limited-term emergency conditions such as President’s rule.
- This judgment negates even the right to consultation of the State’s elected representatives.
● The verdict has reinforced a widespread belief that Kashmiris are resented by the rest of India and their voice is repeatedly silenced.
● Neither the main nor the concurring judgments mention these events in their summaries of incidents prefiguring the presidential orders.
● Instead of acknowledging the enormity of the administration’s actions
○ The judges accepted the alleged security threat to the Amarnath Yatra of which nothing has been heard since
● Security has also been accepted as a reason for the delay in restoring statehood, despite the administration’s claim that the situation is much improved.
- Justice S.K. Kaul’s ‘epilogue’ does take note of human rights abuses in Jammu and Kashmir.
- But it appears, like the main judgment, to ignore the violation of human and political rights in and since August 2019.
Impact on Jammu and Kashmir:
- Available data show a slowly rising curve of violence in Jammu and Kashmir after the Union Home Ministry adopted policies of purge and censorship
- accompanied by deterioration in the India-Pakistan ceasefire agreement.
- The data show a sharp curve of diminishing violence during the peace process of 2002-13.
- The rise in violence between 2016-2018 that the Attorney-General and Solicitor-General referred to might have been more effectively countered by the policy of the A.B. Vajpayee and Manmohan Singh administrations
- By improving democratic practice on the ground in the State while engaging in peace talks with Pakistan.
- Validation of the extreme clampdown of August 2019 and the actions taken under its cover
- It runs the risk of an upsurge in violence if or when a semblance of democracy is restored.
Way Forward
- The verdict’s validation of the removal of autonomy, and administrative bias towards developers and industrialists from outside the former State, can only harden alienation in the Valley.
- The Union administration could start a new peace process: It could restore statehood, and hold elections.
- It could return freedom of expression.
- But it would need to be prepared for an outpouring of anger that has thus far been damned by fear of arrest or worse
- Longer term, it would need to return to the blueprint for a solution that was developed by A.B. Vajpayee and Mr. Singh.
- That blueprint included the disarmament of armed groups and demilitarization of the area
- A soft border with autonomy for both Jammu and Kashmir and its Pakistan-held parts
- An option of joint development for the whole of the former princely State.
QUESTION FOR PRACTICE
The banning of ‘Jamaat-e – islami’ 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 influence of OGWs.(UPSC 2019) (200 WORDS, 10 MARKS)
