01 January 2024 – The Hindu

Supreme Court's Verdict on Article 370

Context:

The Hon'ble Supreme Court of India rendered a landmark decision on the repeal of Articles 370 and 35A on December 11,
2023. Every Indian cherishes the fact that the Court has preserved India's sovereignty and integrity through its ruling. The
Supreme Court noted that the action taken on August 5, 2019, to revoke Article 370, ending the former state of Jammu and
Kashmir's special status, was intended to strengthen constitutional integration rather than cause disintegration. The Court
has acknowledged that Article 370 did not have a permanent nature.

What was covered under Article 370?

The Indian constitution's Article 370 granted Jammu and Kashmir, a territory that is claimed by China, Pakistan, and India,
unique status.
It was written by Indian Constituent Assembly member N Gopalaswami Ayyangar and added to the constitution in 1949 as a
"temporary provision."
With the exception of defence, foreign policy, and communications, it gave the state permission to have its own
constitution, flag, and degree of autonomy over most issues.
It was predicated on the conditions of the Instrument of Accession, which Jammu and Kashmir's ruler, Hari Singh, signed in
1947 to become a part of India following Pakistan's invasion.

How was Article 370 repealed by the government?

Presidential Order: The Parliament introduced a provision in the 2019 Presidential orders that redefines the term
"constituent assembly of Jammu and Kashmir" to refer to the "Legislative Assembly of Jammu and Kashmir." The President's
rule then grants the Legislative Assembly's authority to revoke Article 370.
Parliamentary resolutions: On August 5 and 6, 2019, respectively, the Lok Sabha and Rajya Sabha, the two houses of the
legislature, enacted concurrent resolutions. These resolutions repealed Article 370's remaining clauses and added new ones
in their stead.
Jammu and Kashmir Reorganisation Act: On August 5, 2019, Parliament passed the Jammu and Kashmir Reorganisation Act,
2019. The state of Jammu and Kashmir was divided into two Union Territories by this act: Jammu and Kashmir and Ladakh.

What Was Said by the Court?

370 was a Temporary measure: The court determined that the State of J&K lacked domestic sovereignty and that Article 370
was a temporary measure.
The court determined that there were two main reasons why Article 370 was intended to be a "temporary provision."
It fulfilled a transitional role by creating a temporary framework for the establishment of a Constituent Assembly of J&K,
which would be tasked with drafting the state constitution.
Given the ongoing state of conflict in the State in 1947, it was intended to facilitate J&K's incorporation into the Union of
India.
According to the CJI, the governor (or President in the case of J&K) may take "all or any" of the functions of the state
legislature, and only in extreme circumstances must such action be subject to judicial review.
State Government Concurrence Is Not Necessary: The court decided that the President may unilaterally declare the
termination of Article 370 in the exercise of his or her duties under Article 370(3) of the Constitution.

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 It further stated that the provisos to Article 370(1) did not need the President to get the State government's agreement in
this regard (d).
The Jammu and Kashmir Reorganisation Act, 2019 was upheld by the court insofar as it divided the State of J&K into the
Union Territory of Ladakh.
The State legislature's opinions on the proposed restructuring are merely recommendations, the court said, and they are
not binding on the Parliament.
Parliament Is Not Just a Body That Makes Laws: The Chief Justice ruled that the Parliament in a State that is governed by the
President has authority beyond just drafting laws. It covered executive action as well.
The Court further noted that several decisions are made by the Union Government on behalf of the State Government for
the purpose of daily administration when a Proclamation under Article 356 is in effect.
There is no appeal process for any decision or action made by the Union Executive on behalf of the State.
There would be chaos and uncertainty if every decision was open to review.
Conduct Elections and Restore Statehood: The court ruled that J&K's statehood should be reinstated as soon as feasible and
mandated that by September 30, 2024, elections for the state's legislative assembly must be held.
Creation of a "Truth and Reconciliation Commission": In his concurring opinion, Justice Kaul suggested creating a
commission to address human rights violations in Jammu and Kashmir committed by both state and non-state actors since
the 1980s. This commission would be modelled after the one established in South Africa following the end of apartheid.

What caused the repeal of Article 370?

Integration and growth: By fostering a sense of separatist and obstructing Jammu and Kashmir's growth, Article 370
prevented the region's full integration into the Indian Union.
It was thought that J&K residents would have better access to opportunities, infrastructure, and resources with full
integration.
National Security: Pakistan used Article 370 to encourage secession and terrorism in the area. By giving the Indian
government greater authority over the area and the ability to crack down on terrorist activity, the abrogation will improve
national security.
Ending Discrimination: In Jammu and Kashmir, women, Dalits, and other marginalised groups were subjected to
discrimination under Article 370. They would have equal rights and opportunities and come under Indian law as a result of
the abrogation.
Openness and Accountability: The governance of Jammu and Kashmir was rendered opaque and unaccountable by Article
370. Better governance and accountability would result from the abrogation, which would place the state under the
jurisdiction of the Central Vigilance Commission and the Right to Information Act.
Economic Prosperity: Jammu and Kashmir's economy was hampered by Article 370. Increased investment, tourism, and job
growth in the area would be made possible by the abrogation.

What effects has the abrogation of Article 370 had?

Reduction in violence: Since Article 370 was repealed, there has been a notable reduction in violence in Jammu and
Kashmir.
Over 500 terrorist attacks have been reported in the last four years, and over 300 militants have been killed by security
personnel, according to government data.
This can be ascribed to several things, such as tighter security protocols, improved information collection, and a drop in
popular support for militancy.
Better Economic Development: To promote economic development in Jammu and Kashmir, the government has put in
place a number of programmes, including the Industrial Development Scheme (IDS) and the Prime Minister's Development
Package (PMDP).
Increased investment, the creation of jobs, and economic progress in the area have all resulted from these measures.

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 The UT saw a 31% increase in tax revenue. The GSDP of J&K increased by 8% at constant prices in 2022–2023 compared to
7% nationally.
Improved Infrastructure: The government has made significant investments in Jammu and Kashmir's infrastructure
development. This covers initiatives like building new highways, bridges, tunnels, and electricity lines.
Travel and business within the region are now easier for individuals thanks to these developments.
Increased Tourism: Since Article 370 was repealed, there has been a notable increase in the number of visitors to Jammu
and Kashmir. This can be attributed to various causes such as enhanced security, more effective marketing, and the
introduction of fresh tourism projects.
A report claims that in 2022, 1.62 crore tourists visited the region of Jammu and Kashmir, the most in India's 75 years of
freedom.

Way Forward:

In addition to upholding the fundamentals of "Ek Bharat, Shreshtha Bharat," the recent ruling by the Supreme Court has
also served as a potent reminder of the value of cooperation and a shared commitment to good governance. This ruling
demonstrates the court's dedication to upholding the principles that characterise our society and bolstering the foundation
of our country.

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