Supreme Court to Hear Challenges to the Abrogation of Article 370 after 4-year Delay
As the Supreme Court answers large constitutional questions, the will of the people of Jammu and Kashmir hangs in the balance.
Hello everyone, welcome to SCO Explains. On Wednesday this week, all eyes will be on the Supreme Court as it sits to decide the fate of Jammu & Kashmir. Five Judges will assemble to hear the challenges to the abrogation of Article 370 of the Constitution. I’m Gauri Kashyap, and today we’ll try and understand the key events leading up to this case.
Lets begin with the basics—What is Article 370? This is a Constitutional provision that grants special status to Jammu & Kashmir. Article 370 was inserted into the Constitution to accommodate the ‘special conditions’ in Jammu and Kashmir. When the provision was being debated in the Constituent Assembly, Gopalswamy Ayyangar—member and strong proponent of the provision explained that Kashmir was in the middle of a war, the State was ‘in the hands of rebels and enemies’ and India was ‘entangled’ with the United Nations on the ‘Kashmir problem’. This provision would act as a ‘transitional arrangement’, till Jammu & Kashmir ‘could be brought to the level of other States’. Over time, of course, Article 370 became a more permanent feature of the Constitution.
This provision had three main ideas at its core. First, India would not make laws in Jammu & Kashmir outside a predetermined scope, without the ‘concurrence’ of its government. Second, except for Article 1, which declared India as a ‘Union of States’, and Article 370, no part of the Constitution would apply to Jammu & Kashmir. If India sought to make any provisions of the Constitution to apply to this State, the President would have to do so through an executive order of the Constitution—this process would insulate the Constitution of Jammu and Kashmir from influences of Parliament. Thirdly, Article 370 itself could not be amended or repealed—unless the Constituent Assembly of Jammu & Kashmir consented to it.
Addressing the parliament in 1952 Nehru said ‘it does not matter what the Constitution says, if the people of Kashmir do not want it’ India would not force itself upon the people of the State. In the Fourth Session of the Jammu & Kashmir Constituent Assembly, its Prime Minister Sheikh Abdullah remarked that ‘the ultimate source of sovereignty resides in the people’. Constitution framers believed that ‘it is up to the people of Kashmir through this [Jammu & Kashmir] Assembly to transfer more powers for mutual advantage to the custody of the Union Centre.’ This framework ensured that no laws were made in the State that did not have the consent of its people, made known through the Government of Jammu & Kashmir.
Since then, various Presidential Orders have increased the hold of Parliament over Jammu & Kashmir. But in the last two decades, the scenario in Jammu and Kashmir has shifted significantly under the rule of the Bharatiya Janata Party. The abrogation of Article 370 had been on the BJP’s agenda since 2009. They had promised abrogation of Article 370 in its 2009, 2014 and 2019 election manifestos, convinced that ‘Article 370 poses a psychological barrier for the full integration of the people of Jammu & Kashmir with the national mainstream’. Through four decisive steps by the President, from December 2018 to August 2019, the special status awarded to the most disputed region in India was completely dismantled.
In December 2018, the President’s Rule was imposed under Article 356 on Jammu & Kashmir, which resulted in the replacement of the Governor and State legislature by the President and Parliament. On August 5, 2019, another Presidential Order, among other things, amended Article 367 which concerns the interpretation of the Constitution. Specifically, it replaced the words ‘Constituent Assembly’ in Article 370 with ‘Legislative Assembly’. As you’ll remember, to repeal Article 370, the consent of Jammu and Kashmir’s Constituent Assembly was crucial. Now that Jammu & Kashmir had been brought under President’s Rule, the need for the consent of the Constituent Assembly read as consent of the ‘Legislative Assembly’. And under the president’s rule, that meant the Parliament. This vested the power to repeal Article 370 squarely with the BJP-led Government. The very next day, with the recommendation of both houses of the Parliament, the President issued another Order and Article 370 was repealed. The fourth and final step to changing the landscape of Jammu & Kashmir was the Reorganisation Act, which stripped the State of its statehood and divided Jammu & Kashmir into two Union Territories.
Starting August 2nd, the Supreme Court will hear a host of challenges to the Presidential orders and the reorganisation of the state. While large constitutional questions undergo rigorous debate, the will of the people of Jammu and Kashmir hangs in the balance.
We at SCO will be attending the hearings to bring the stories of the COurt to you. Make sure to visit SCObserver.in for concise and clear reports on each day’s hearings, and to follow us on twitter for live updates!
Thank you for watching SCO explains. See you soon!