The Hindu Editorial Analysis- 14th December 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Article 370 judgment is a case of constitutional monism

Why in News?

Recently, Constitution Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud unanimously upheld the Central government’s 2019 decision to abrogate Article 370 of the Constitution which conferred special status on the erstwhile State of Jammu and Kashmir (J&K).

Article 370 of the Constitution of India

• Article 370 Overview:
  • Controversial and debated provision in the Indian Constitution.
  • Grants special autonomy to Jammu and Kashmir.
  • Allows the region to have its own constitution, flag, and significant decision-making powers.
• Origins and Significance:
  • Enshrined in the Indian Constitution.
  • Subject of immense political, legal, and social discussions.
  • Originated due to the unique status of Jammu and Kashmir.
• Provisions of Article 370:
  • Grants Jammu and Kashmir its own constitution.
  • Allows the region to have a distinct state flag.
  • Provides significant decision-making powers to the region.
• Controversies and Discussions:
  • Focal point of conflict involving India, Pakistan, and China since 1947.
  • Governed by India but with internal administrative autonomy.
  • Significant discussions on the political, legal, and social implications.
• Timeline of Governance:
  • Jammu and Kashmir governed as a state by India from 1952.
  • Special status continued until October 31, 2019.
• Post-October 31, 2019:
  • Central government's decision to abrogate Article 370 upheld in 2023.
  • Region loses its special status and becomes a union territory.
• Ongoing Relevance:
  • Ongoing implications and discussions regarding the aftermath of Article 370 abrogation.
  • Continuing impact on the political and social landscape of the region.

Article 370 of Indian Constitution Removed

• Constitutional Background:
  • Title: Part XXI of the Indian Constitution
  • Focus: Temporary, Transitional, and Special Provisions
  • Key Provision: Article 370
• Article 370 Overview:
  • Authority: Jammu and Kashmir Constituent Assembly
  • Role: Suggested the extent of the Indian Constitution's application in the state
  • Power: Could recommend revoking Article 370, applying the entire Indian Constitution
• State Constituent Assembly's Role:
  • Recommendations: Determined specific provisions of the Indian Constitution for Jammu and Kashmir
  • Outcome: 1954 Presidential order issued based on the assembly's suggestions
• Article 370 Status:
  • Assumption: If the state assembly didn't propose repeal, Article 370 considered permanent
  • Disbandment: State constituent assembly disbanded without suggesting Article 370 repeal.

Article 370 Origins and Inclusion in the Constitution

• Background of Article 370:
  • Negotiations in 1947: Article 370 originated from negotiations between Jammu and Kashmir leaders and the Indian government during India's independence in 1947.
  • Purpose: Incorporated to address concerns of Jammu and Kashmir, respecting its unique history, culture, and autonomy.
• Abrogation of Article 370 in 2019:
  • Presidential Order (August 5, 2019): Replaced the 1954 order, subjecting Jammu and Kashmir to all articles of the Indian Constitution.
  • Parliamentary Approval: A resolution with two-thirds majority in both chambers of the Indian parliament supported the order.
  • Inoperative Clauses: All clauses of Article 370, except for clause 1, were made inoperative by an order on August 6, 2019.
  • Jammu and Kashmir Reorganization Act, 2019: Approved by parliament, leading to the division of Jammu and Kashmir into two Union Territories: Jammu and Kashmir, and Ladakh. Implemented on October 31, 2019.
• Legal Challenges and Supreme Court Involvement:
  • Petitions: The Supreme Court of India received 23 petitions in response to the government's intention to repeal Article 370.
  • Five-Judge Bench: Formed to address the legal challenges arising from the petitions.
• Instrument of Accession (October 1947):
  • Maharaja Hari Singh: Signed the Instrument of Accession in October 1947, ceding authority in foreign affairs, defense, and communications to the Indian government.
  • Sheikh Abdullah's Role: Appointed as prime minister in March 1948, played a key role in negotiating and drafting Article 370.
  • Unique Status: Article 370 granted special autonomy to Jammu and Kashmir.

Article 370 of the Constitution of India Special Autonomy to Jammu and Kashmir

• Article 370: Special Status of Jammu and Kashmir
  • Unique autonomy for Jammu and Kashmir under Article 370.
  • Special privileges compared to other Indian states.
  • Own constitution, flag, and dual citizenship for residents.
• Exclusive Benefits for Permanent Residents
  • Separate laws for citizenship, property ownership, and fundamental rights.
  • Residents enjoy advantages in housing, real estate, education, and government employment.
• Article 35A: Protection from Constitutional Challenges
  • Prevents contesting state laws solely on the basis of violating national constitutional rights.
  • Ensures unique rights for Kashmiri residents.
• Partial Application of Fundamental Rights
  • 1954 Presidential order extends some Fundamental Rights to Kashmir with reservations.
  • State assembly introduces "preventive detention laws" shielded from human rights complaints for 25 years.
• Human Rights Concerns
  • Autonomy and special status raise concerns about weaker human rights standards.
  • Unique legal provisions contribute to apprehensions regarding human rights in Jammu and Kashmir.

Article 370 of the Constitution of India Limited Application of Indian Laws