Supreme Court Verdict on Abrogation of Article 370

Author: Arpita Tiwari

College: SVKM Narsee Monjee Institute of Management Studies,

Hyderabad

Year of Study: 4th Year, 2023

Course: B.A.LL.B (HONS)

Published on: Juris Centre Review Journal, Volume II Issue V,

Access Here: https://juriscentre.com/

 INTRODUCTION

The most challenging and divisive article in the Indian Constitution is Article 370. Article
370 is present in part xxi of the Indian Constitution and it received a unique accord to the
territory of Jammu and Kashmir due to which this state enjoys unique advantages 1. The
applicability of Article 370 to Jammu and Kashmir was a key stumbling block in the state's
growth. Article 370 was added in the Indian Constitution in 1949 after India got
Independence from the British rule. So, basically this Article says that the Assembly has the
authority to change, alter or make exceptions to Article 370 of the Indian Constitution which
applied to the territory of Jammu and Kashmir 2. As a result, since this Article is a "temporary
provision," it cannot be repealed, modified, or substituted unilaterally. There are so many
debates and discussions which have occurred within the last several years about the
temporary nature of article 370 and its effect on the integration of Jammu and Kashmir with
the rest of India. This article contains a wealth of historical and literary material that is
founded in political and theological thought rather than legal or constitutional considerations.

BACKGROUND OF ARTICLE 3703

The territory of Jammu and Kashmir is a “paradise site” on the earth because of its
enchanting beauty and geographical position. The history of Jammu and Kashmir has
experienced many stages. The territory of Jammu and Kashmir is a Princely State like the
other states but when India got independence in 1947, the territory was assaulted by Pakistani
troops. In order to protect the state from Pakistani troops at that time Maharaja Hari Singh,
who was the Maharaja of this state, requested assistance from the Indian Government. At that
point Maharaja Hari Singh, the ruler of Jammu and Kashmir asked to “Sign the Instrument of
Accession” by the Indian Government and he complied on that and signed the Instrument of
Accession on 26th October 1947, officially joining the Indian dominion. Lord Mountbatten,
who is the governor-general of India, on October 27th 1947 acknowledged this accession. In
the year 1949 the Indian Constitution was ratified. Subsequently, it remained unclear how
1
Ishita Sethi, Abrogation of Article 370,Nickeled & Dimed,
(Jan 2, 2024), https://nickledanddimed.com/2024/01/02/abrogation-of-article-370/
2
Constitution of India. Art.370, cl.1, Sub cl. d.
3
Kavita Agarwal and Shaista Afzal, “Historical Analysis of the Revocation of Article 370”, International Journal
of Political Science and Development, Vol. 9(4), 175, 175-178 (2021).
Jammu & Kashmir would interact with India in the future. So, in order to develop
connections with the territory of Jammu and Kashmir, Article 370 was added into the Indian
Constitution. This article is temporary in nature that granted Jammu and Kashmir unique
status by saying that the state shall have its own constitution and the clauses of the Indian
Constitution will not applicable on this state. The legislative assembly has the authority over
the three topics which include Foreign affairs, Security and Communications. Article 370(3)
of the Constitution further specifies that the article may be repealed upon the suggestion of
the constituent assembly of this state. The rights of the permanent inhabitants of Jammu and
Kashmir were remained unchanged even after Article 370 came into effect. After this the new
Article 35A has been incorporated which defines the privileges of permanent inhabitants of
Jammu and Kashmir and was released by Indian President Dr. Rajendra Prasad on 14 th May,
1954 and was called Constitution application to (Jammu and Kashmir) order 1954. “On
August 2019, the president of India surpassed the presidential order of 1954 and passed a
presidential order of 2019”. Following the implementation of the aforementioned order, the
government of India presented two resolutions in the upper house, one for the reorganization
of Jammu and Kashmir and a second for the removal of Article 370, which was approved by
a two-thirds majority in the upper house.

EXPLANATION OF ARTICLE 370

1. This article starts with the words “Notwithstanding anything in this Constitution” which
indicates that the provisions of this article will solely applies to the state of Jammu and
Kashmir and they have no impact on any other provisions of the Indian Constitution.4
2. Article 370(1)(a) states that the territory of Jammu and Kashmir is not included in the
restrictions of Article 238.5
3. According to Article 370(1)(b), the parliament has restricted authority to enact
legislation for the Jammu and Kashmir region. The topics which have been given under
the Union list and the Concurrent list are those which are announced by the president
after seeking advice with the state administration are related to those listed in the
Instrument of Accession. The topics provided in the Union list and Concurrent list
should be applied only on the choice of the Governor of Jammu and Kashmir. The

4
Constitution of India. Art. 370, cl. 1.
5
Constitution of India. Art. 370, cl.1, sub cl. a.
 parliament has the authority to take decisions on the matters which have been listed only
on the state list.6
4. According to Article 370(1)(c) it states that Article 1 of the Indian Constitution applies
to the territory of Jammu and Kashmir.7
5. According to Article 370(1)(d) it states that certain adjustments and alterations in the
article may be made by passing presidential decree but before issuing such order
president be compelled to take the opinion or consent of the Governor of the territory of
Jammu and Kashmir. Such order must be connected to the issues mentioned under the
Instrument of Accession and must be approved by the Governor of the State.8
6. According to Article 370(3) states that President is in charge to amend or repeal this
article by issuing an official notice in the official Gazette and for that he has to grasp the
approval of the state Governor’s ahead of implementing similar attempt.9

EXPLANATION OF ARTICLE 35A10

 This article talks about the classifications of individuals who are permanent occupant of
the territory of Jammu and Kashmir.
 This article bestows particular rights and benefits on such permanent inhabitants or
imposes limits on others in the following areas:
1) Job under the state government.
2) Purchasing real estate inside the state.
3) Relocated within the state; or
4) Entitled to scholarships and other types of assistance as determined by the state
administration.

HOW DID ARTICLE 370 GET ABROGATED?

Mr. Ram Nath Kovind, who is the Honorable President of India at that time, has issued a
presidential order titled Constitutional (application to Jammu and Kashmir) Order 2019,
which supersedes the presidential order of 1954 by utilizing his authority under Article
370(1) which takes effect immediately. When this presidential order 2019 has been enacted
on the very moment Article 35A rendered ineffective and along with that the self-sufficient

6
Constitution of India. Art. 370, cl.1, sub cl. b.
7
Constitution of India. Art. 370, cl.1, sub cl. c.
8
Constituion of India. Art. 370, cl.1, sub cl. d.
9
Constitution of India. Art. 370, cl. 3.
10
Constitution of India. Art. 35A
Constitution of Jammu and Kashmir went out of existence. Mr. Amit Shah, Honorable Home
Minister of India, gained 2/3rd majority in the upper chamber of the Parliament on that day
itself when the 2019 presidential order has been approved11. Both resolutions were as follows:

1. Article 370 rendered ineffective.

2. Jammu and Kashmir Reorganization Bill.

According to the Jammu and Kashmir Reorganization Bill, two union territories would be
established:

1. Leh, which will comprise Kargil and Ladakh.

2. The territory of Jammu and Kashmir

So, it was decided that there is no legislature for the Leh union region while Jammu and
Kashmir union region will have one.

It is necessary to accept the suggestion from the Constituent Assembly of Jammu and
Kashmir ahead of eliminating Article 370 or declaring it futile because it is mentioned under
Article 370(3) of the Indian Constitution but as soon as it will be done the constituent
Assembly was abolished in 1957. Consequently the lack of existence of constituent assembly
ended up being an obstacle in the elimination of Article 370. Article 367 which was an
interpretation clause of the Constitution was amended and this problem was ended by
presidential order 2019. Thus, Article 370 was eliminated as a result.

THE PURPOSE BEHIND REMOVING ARTICLE 370

The state of Jammu and Kashmir has signed the instrument of accession and become the part
of Indian Domain but still the territory of Jammu and Kashmir is unable to fully integrate into
India like other states as it received a unique status due to the enactment of Article 370 which
says it has its separate constitution and that none of the clauses of the Indian Constitution is
appropriate. The central government of India was unable to exercise complete authority over
this region and thus prevented it from developing to the same level as other Indian states.
Therefore, parliament of a union of India could not make decisions for this state other than on
three matters, and the number of violent events in this state was rising daily. In order to create
peace and growth in the territory of Jammu and Kashmir the Indian government has decided
to repeal Article 370 and most importantly to make this state an essential component of India.
11
Sheikh Aamin Hussain, Abrogation of Article 370 and its Consequences:- An Analytical Study, International
Journal of Creative Research Thought, Volume 9, Issue 4, 1505, 1505-1510(2021).
 SC VERDICT ON ABROGATION OF ARTICLE 370

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 loves the fact that the Court has preserved
India's sovereignty and integrity via its ruling. The Supreme Court emphasized that the action
adopted on August 5, 2019, to revoke Article 370, ending the previous territory of Jammu
and Kashmir's unique position, was intended to strengthen constitutional unity rather than
cause fragmentation. The Court agreed that Article 370 didn't possess an everlasting
character.12

WHAT WAS THE OBSERVATION OF THE COURT?

 Art. 370 was a transitory measure: The court determined that the territory of J&K
lacked domestic sovereignty and that Article 370 constituted a transitory measure.
o The court while giving a judgement stated two main grounds that why Article 370
was intended to be a “temporary provision”.
a) It accomplished the transitory goal of creating a temporary framework for the
formation of a Constituent Assembly of J&K, which would be tasked with drafting
the state constitution.
b) It was intended to facilitate J&K's incorporation into the Union of India with the
State still experiencing a state of warlike conditions in 1947.
 The Governor may take on "all or any" State Legislature responsibilities: The
Court has sustained the declarations by citing the landmark case i.e., “SR Bommai v.
Union of India, 1994,” which addressed the authority and constraints of the Governor
under the President’s rule.
o As stated by the CJI, the governor (or President in the case of J&K) may take "all
or any" of the functions of the state legislature, only in extreme
circumstances these decisions must be subject to judicial review.
 The State Government's Consent Is Not Needed: The court decided that the President
may independently declare that Article 370 is no longer in force in fulfillment of his or
her authority under Article 370(3) of the Constitution.

12
Apurva Vishwanath, Explained: key Aspects of Supreme Court’s Article 370 Verdict, The Indian Express,
(Dec13, 2023, 8:30 PM), https://indianexpress.com/article/explained/key-aspects-of-article-370-verdict-
unpacked-9064079/
 o According to the proviso of Article 370(1)(d) it was additionally stated that it is not
necessary for the president to receive the assent of the State Government in this
respect.
 Affirmed the 2019 legislation: “The Jammu and Kashmir Reorganisation Act, 2019”
was upheld by the court inasmuch as it separated the territory of Jammu and Kashmir
into the Union Territory of Ladakh.
o The court said that, the State legislature's opinions on the planned reorganization
are only recommendations and they have no legal impact on the Parliament.
 Parliament Is Not Just a Body That Makes Laws During President's Rule: The
Chief Justice ruled that the Parliament's authority in a State subject to the President's rule
extended beyond simple legislative authority. It covered executive action as well.
o Additionally, the Court noted that the Union Government makes several decisions
on behalf of the State Government for daily administrative purposes while the
declaration under Article 356 is in effect.
o There is no appeal process for any decision or measure made by the Union
Executive as a representative of the State.
o There would be unpredictability and confusion if all option was available for
review.
 Hold Elections and Recover Self-government: The court ruled that J&K's statehood
ought to be reestablished as quickly as feasible and mandated that by September 30,
2024, elections for the state's legislative assembly must be conducted.
 Creation of a "Truth and Reconciliation Commission": Justice Kaul in his approving
views suggested creating a commission to label the abuses of human rights in Jammu
and Kashmir committed by both state and non-state actors since the 1980s. This
commission would be modeled after the one established in South Africa following the
end of apartheid.

CURRENT SITUATION FOLLOWING THE SUPREME COURT’S

DECISION ON ARTICLE 37013

After the Supreme Court verdict on the elimination of Article 370 the territory of Jammu and
Kashmir has no particular constitution and the territory will be governed by the Indian
13
Ramiz Raja Malik, After Scrapping the Article 370: Know What Changed in Jammu and Kashmir? The Times
of India, (August 7, 2022, 14:45 IST), https://timesofindia.indiatimes.com/readersblog/ramiz-raja-malik/after-
scrapping-the-article-370-know-what-changed-in-jammu-and-kashmir-44174/
constitution. “Dual Citizenship” will no longer exist in Jammu and Kashmir as it was
mentioned under Article 370 only the permanent inhabitants of Jammu and Kashmir are
permitted to give votes during the elections but after the removal of Article 370 any Indian
citizen is now eligible to give vote in the territory of Jammu and Kashmir.

There is a 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 previous four years, and over 300 terrorists were murdered by security personnel, as
per government statistics. This may be ascribed to many things, such as tighter security
protocols, improved information collection, and a drop in popular backing for militancy.

Economic growth has been enhanced and to promote economic development in Jammu and
Kashmir, the government has put in place various programs, including the Industrial
Development Scheme (IDS) and the Prime Minister's Development Package (PMDP). The
region's economy has grown as a result of these measures, which have also generated
investment and created jobs.

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 connections.

There will be no more discrimination against women in Jammu and Kashmir. Upon the
elimination of Article 370, a woman from Jammu and Kashmir would now be entitled to
assets irrespective of whether she marries a temporary resident.

Children may take advantage of the Right to Education program that offers free education to
those between the ages of eight and fourteen. Every measure that protects women's worth and
the innocence of the children will also be applied to the region. There will be security for
ST/SC rights. From this point forward, all Acts that safeguard the human rights and honor of
those living in marginalized communities shall be relevant. Right to Information laws are
applicable in Kashmir to eradicate corruption. The territory of Jammu and Kashmir no longer
has a distinct flag after the repeal of Article 370.

CHALLENGES AND PROBLEMS

With respect to the changes made after the removal of Article 370 are proved to be good for
the territory of Jammu and Kashmir but still there are so many problems which has been
faced by the individual of Jammu and Kashmir.14

Terrorism has increased and is predicted to climb much more in the days ahead. This occurs
usually because, in the past, any growth in unrest in Jammu and Kashmir has allowed
Pakistan to misjudge the situation.

One of the stated justifications for the decision, the state's pervasive poverty, is unsupported
by scientific evidence. The state's poverty rate is just 10.35 percent, whereas the national
average is 21.92 percent. If not specifically rejected, the split of Jammu and Kashmir might
give rise to calls for an additional state division, which could result in a protracted period of
unrest and instability. Lastly, there is little chance that the Kashmiri Pandits would come back
because of the unfavorable safety environment in the Valley right now. After the Center
announced that J&K's special status would be withdrawn, high-speed internet services in the
region were suspended in August 2019. This threatened the right to an internet, hindered the
smooth functioning of IT-based businesses, and hampered online education, especially during
the COVID-19 pandemic.

CONCLUSION

It was a remarkable and significant decision in Jammu and Kashmir history to remove Article
370. The application of the article has given the distinctive honor to the individuals of Jammu
and Kashmir due to which the territory has been isolated from the other states and this was
also the main cause of the territory's underdevelopment relative to other states and of the rise
in violent crime rates; therefore, the eradication of Article 370 was required in order to
improve this state and bring about harmony in this territory. Taking into account the clause
granting this state its unique identity was no longer in effect, this state formally joined India
with the elimination of this article and the union government of India assumed complete
authority over it. We can now, at last, say that the repeal of Article 370 was both appropriate
and required. In addition to upholding the fundamentals of "Ek Bharat, Shreshtha Bharat,"
the latest decision by the Supreme Court has also served as a potent remembrance of the
value of cooperation and a shared commitment to good governance. This ruling demonstrates

14
See, Challenge After Article 370, The Hindustan Times Editorial, (Dec 25, 2023, 9:00 PM IST),
https://www.hindustantimes.com/editorials/challenge-after-article-370-101703514599902.html
the court's dedication to upholding the principles that characterize our society and bolstering
the foundation of our country.

REFERENCES

Online Journals

1. Surbhi Gupta and Shashi Bhushan Ojha, “ Article 370 of the Indian constitution – A
study in specific reference to legal dimensions and implication”, International journal of
law, ISSN- 2455-2194, Volume 4, issue 3, page no01-04. https://www.lawjournals.org/
2. Kavita Agarwal and Shaista Afzal, “Historical Analysis of the Revocation of Article
370”, International Journal of Political Science and Development, ISSN-2360-784X,
Vol. 9(4), pp. 175-178, June 2021.
https://www.academicresearchjournals.org/IJPSD/PDF/2021/June/Agrawal%20and
%20Afzal.pdf
3. Irshad Ahmed and Seema Parihar, “Abrogation of Article 370: The Symbol of National
Integrity”, International Bi-annual Refereed Journal of Management and Technology,
ISSN-0974-7621, Volume 17, Issue 2, page no.01-04, December 2023.
https://www.gjimt.ac.in/wp-content/uploads/2023/04/1-Abrogation-of-Article-370_1-
4.pdf
Websites
1. Vinod Rai, “Supreme Court of India Upholds Abrogation of Article 370”, Available at:
https://www.isas.nus.edu.sg/papers/supreme-court-of-india-upholds-abrogation-of-
article-370/
2. Ramiz Raja Malik, “After Scrapping the Article 370: Know what changed in Jammu
and Kashmir?” Available at: https://timesofindia.indiatimes.com/readersblog/.
Statute
The Indian Constitution, 1949