Context: The Supreme Court will decide the constitutionality of the Presidential Orders that removed Jammu and Kashmir’s special constitutional status under Article 370.
Article 370
Article 370 was inserted in the twenty-first part of the constitution that proclaimed it to be Temporary, Transitional and Special Provision.
- It provided for a special status to Jammu and Kashmir, which was granted to it through the Presidential Order of 1954.
- According to it Jammu and Kashmir have a constitution of their own.
- The Centre must take the concurrence of the state’s constituent assembly before passing any legislation or an act on the state.
- The boundary of the state and name cannot be altered under Article 3 of the Indian Constitution.
- The President is empowered to make an order to amend or abrogate the article, but he can only do this with consent of the state’s constituent assembly.
- The amendment concerning Article 368 will only be applicable when it is applied by the President’s order.
- In Article 370(3), the President may declare Article 370 to be inoperative but for this he requires the consent of the constituent assembly of the state.
On 5 August 2019, the Government of India issued a Presidential Order superseding the 1954 order and making all the provisions of the Indian constitution applicable to Jammu and Kashmir.
The order was based on the resolution passed in both houses of India’s parliament. A further order made all the clauses of Article 370 except clause 1 to be inoperative.
Issue with abrogation
- State of J&K historically represented a unique relationship unlike princely states like Hyderabad, Junagarh etc. which integrated into the Union.
- Article 370 cannot be revoked, as concurrence of constituent assembly was necessary according to the constitution of India.
- The Governor took on the role of the ‘State government’ after keeping the State Legislative Assembly in suspended animation who lack the representation of state.
- There is a fear that this will threaten the local culture of the state by increasing the inflow from the other states.
Arguments in favour of abrogation
- The Constituent assembly is not a permanent body like parliament so the provision making the Constituent Assembly’s ‘recommendation’ necessary before abrogation has no application at present.
- Article 370 was mentioned in the Constitution only as a “temporary” provision and not with other permanent features.
- This abrogation will realise the true spirit of unity and lead to the economic benefits and development of the J&K state.
- This may decrease the separatism and terrorism tendencies prevailing in the state.
Court cases
Sampat Prakash v. Jammu & Kashmir (1968)
The Supreme Court said:
- Article 370 will only dissolve upon the recommendation of the Constituent Assembly under Article 370(3).
- The power to issue orders includes the power to add, amend, vary or rescind them.
SBI v. Santosh Gupta (2016)
- The Supreme Court overturned the J&K high court judgment, holding that Parliament had legislative competence to enact the provisions because India’s Constitution is superior to Jammu & Kashmir’s.
- The court held that Article 370(1)(b) does not limit Parliament’s power because the Constitution of India is applicable to Jammu & Kashmir via the 1954 Presidential Order.
