Supreme Court Verdict on Petitions Challenging Scrapping of Article 370
The Union Government on 5th August, 2019 revoked the special status granted to the state of Jammu & Kashmir under Article 370 of the Indian Constitution through a presidential order and made the entire constitution of India applicable to the state.
The Jammu and Kashmir was divided into 2 union territories, i.e. Union Territory of Jammu & Kashmir and Union Territory of Ladakh, with effect from 31st October, 2019 by the Jammu & Kashmir Reorganisation Act, 2019.
This decision of Union Government was challenged in the Supreme Court. The apex court accepted the petitions against the Union Government order and on 11th December, 2023 gave its verdict and upheld the abrogation of Article 370 which granted special status to Jammu & Kashmir, calling the move the culmination of the process of integration of the erstwhile state into the Union of India.
The bench comprising of Chief Justice of India (CJI) D. Y. Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R. Gaval, and Surya Kant directed the Election Commission of India to conduct polls to the Jammu & Kashmir legislative assembly by 30th September, 2024 and asked the centre to restore statehood to the region as soon as possible.
The judges were also in unison about the validity of two constitutional orders issued in August 2019 by the President in applying all provisions of the Indian Constitution to Jammu & Kashmir and cession of Article 370 declaring that the president was not required to obtain the approval of Jammu & Kashmir constituent assembly (which was dissolved in 1957) or the Jammu & Kashmir legislative assembly before notifying under Article 370 that this article shall cease to be operated.
Other main points of the verdict:
- The provisions of Article 370 were temporary in nature and the President has the right to issue orders on it.
- The sovereignty of Jammu & Kashmir was lost after its merger with India on 25th November, 1949. It was clear in the merger that Indian Constitution will be supreme.
- Union Government has the right to convert any portion of a state into union territory and thus, to make union territory of Ladakh from Jammu & Kashmir as a union territory is a legal act.
ARTICLE 370 (PART-XXI)
(Special Autonomous Status to J & K)
Temporary, Transitional & Special Provisions
The state of Jammu & Kashmir became part of India through a Contract known as Instrument of Accession signed on 26-10-1947 by Maharajadhiraj of Jammu & Kashmir Raja Hari Singh. It was a Conditional merger of J & K State in India. Some special provisions were made in our Constitution to make this merger possible such as–
- Dual Citizenship
- Dual Constitution
- Separate flag for J & K
- Six years tenure of Legislative Assembly
- Disrespect of National Flag as no crime in J & K.
- Supreme Courts order not fully applicable in J & K.
- Limited powers of Parliament to make laws on J & K.
- No RTI is applicable in J & K.
- No Law of Parliament applicable in J & K unless approved by state legislature.
- No reservation for minorities in J & K.
- Non citizens of J & K cannot purchase land in J & K.
- Fundamental Right to Property (Article 31) was never applicable in J & K. (Fundamental Right to Property under Article 31 has already been abolished by 44th CAA 1978).
- Fundamental Duties under Part-IV-(A) Article-51(A) were not applicable in J & K.
- DPSP (Part-IV) were not applicable in J & K.
- Fundamental Right to Education (Article 21-A) was not applicable in J & K.
- Urdu as official Language of J & K.
- If a J & K citizen girl marries a non J & K boy, then her citizenship of J & K used to get void.
- If a J & K citizen girl marries a Pakistani boy, then that Pakistani boy was entitled for Citizenship of J & K and consequently entitled for Citizenship of India.
- Ranbir Penal Code (RPC) was applicable in J & K instead of Indian Penal Code (IPC) which is applicable in rest of India.
Till 1965, the head of the State of J & K was designated as Sadr-e-Riyasat i.e., President and head of the state government was designated as Wazir-e-Alam i,e. (Prime Minister). After 1965, these posts were designated as Governor and Chief Minister respectively in the state. J & K used to have its own Constitution which was adopted on 17th November 1956 and implemented on 26-1-1957. Union was empowered to make laws for J & K on just four subjects (Defence, Foreign Affairs, Communications and Ancillary Subject). The law making authority on all other subjects was with State Legislature.
To enter into J & K there used to be a permit system (Just like VISA issued by J & K government).
Note:
To oppose permit system, Jansangh party leader Dr. Shyama Prasad Mukherjee decided to enter J & K without permit.
He was arrested by J & K Police and died under mysterious circumstances on 23rd June, 1953.
The ideology of Jansangh is that a Single Country cannot have two Constitutions, two Presidents, two Prime Ministers, two National Flags, two National Emblems etc.
Article 35(A)
Article 35(A) of Indian Constitution empowers J & K State Legislature to define permanent residents of the State and provide special Rights & Privileges to those permanent residents. This article was added to the Constitution through a Presidential order on 14th May, 1954 exercising the powers Conferred in clause (1) of Article 370. Article 35(A) deals with
- Employment under State Government
- Purchase of Immovable Property in the State
- Settlement in the State
- Right to vote
- Right to scholarship, aid by State Government etc.
It was always demanded by BJP to abolish special status of J & K by scrapping Article 370 & Article 35(A). During Lok Sabha election in 2014, it was one of the election promise of BJP that after coming to power, they will abolish Article 370 & Article 35(A).
On 5th August, 2019, Union Government revoked the special status granted to J & K under Article 370 through a presidential order and made the entire Constitution of India applicable to the State. This implied that the Article 35(A) stood abolished.
(Article 370 is now inoperative even though it still exists in the Constitution).
Many BJP Leaders described the event as realisation of Dr. Shyama Prasad Mukherjee’s dream.
Now the position of J & K is as one of the Union Territory of India with a legislative assembly without any Special Status and Privileges. All the laws of Parliament are now applicable to UT of J & K and instead of Ranbir Penal Code (RPC) now Indian Penal Code (IPC) is applicable in UT of J & K. This was made possible by Jammu & Kashmir Reorganisation Act 2019.
The Jammu & Kashmir Reorganisation Act, 2019
The Jammu and Kashmir Reorganisation Act 2019 is an act of Parliament. It contains provisions to reconstitute the state of Jammu and Kashmir into two union territories to be known as union territory of Jammu and Kashmir and union territory of Ladakh with effect from 31st October 2019.
The Jammu and Kashmir reorganisation Bill 2019 was introduced by Home Minister Amit Shah in Rajya Sabha on 5th August 2019. The bill was passed by Rajya Sabha the same day and was passed by Lok Sabha on 6th August 2019 and received assent of the President on 9th August 2019 and became Jammu & Kashmir Reorganisation Act 2019.
This bill was supported by 370 members in Lok Sabha and 125 members in Rajya Sabha. 70 members in Lok Sabha and 61 members in the Rajya Sabha opposed this Bill.
Prior to introduction of this bill, a presidential order was passed to revoke the special status of Jammu and Kashmir as mentioned in Article 370 of the Constitution which superseded the 1954 Presidential order. The 1954 order had a provision to the article 3 of the constitution stating that Union would not alter the name, area & boundaries of State of Jammu & Kashmir. It’s revocation paved the way for introduction of Reorganisation Bill 2019.
Jammu and Kashmir will have a Legislative Assembly while Ladakh will be without any Legislative Assembly. Both the Union Territories will have Lieutenant Governors. Ladakh will include Leh and Kargil districts while the other districts will be accorded to Jammu and Kashmir. Ladakh will have one Lok Sabha seat while Jammu and Kashmir will have five Lok Sabha seats. All the four Rajya Sabha seats will be from Jammu and Kashmir. The High Court of Jammu & Kashmir will function as High Court for both the union territories.
The administration of Jammu and Kashmir will be as per article 239 of the Constitution. Article 239 (A) originally formulated for the union territory of Puducherry will also be applicable to union territory of Jammu and Kashmir. Legislative Assembly of Jammu and Kashmir will have 107 to 114 seats. Tenure of Legislative Assembly will be five years. The Legislative Assembly may make law for any of the subject in:
(i) state list except PUBLIC ORDER and POLICE which will remain as the law making powers of Union Government.
(ii) any matter in concurrent list applicable to union territories.
Lieutenant Governor of Jammu and Kashmir may nominate two women members to Legislative Assembly if in his opinion women are not adequately represented in the same. Seats will be reserved for Scheduled Castes and Scheduled Tribes in proportion to their population in union territory of Jammu and Kashmir.
The Legislative Council of Jammu and Kashmir has been abolished with effect from 16th October 2019. Shri GC Murmu was the first Lieutenant Governor of union territory of Jammu and Kashmir while Mr Manoj Sinha is the present Lieutenant Governor. The first Lieutenant Governor of union territory of Ladakh was Shri RK Mathur and the current Lieutenant Governor is Brig. B. D. Mishra (Retd.).
Please Note:
- Rajya Sabha members are elected by elected members of legislative assembly. Since union territory of Ladakh will not be having any legislative assembly, no representation of Ladakh will be in Rajya Sabha. All four members of Rajya Sabha shall be elected by elected members of Legislative Assembly of Jammu and Kashmir.
- Now our six states legislatures are bicameral i.e. have Vidhan Sabha & Vidhan Parishad (both). They are UP, Bihar, Maharashtra, Karnataka, Andhra Pradesh and Telangana. The Vidhan Parishad of Jammu and Kashmir state has been abolished on 16 October 2019. The Legislative Assembly of Rajasthan has passed a resolution to establish Vidhana Parishad in the state while legislative assembly of Andhra Pradesh has passed a resolution to abolish Vidhan Parishad from the state. Legislative Assembly of West Bengal recently passed a resolution to establish Vidhan Parishad in the state.
Under Art 169 of the Constitution, our Parliament can establish or abolish Vidhan Parishad in a state.
- Earlier Jammu and Kashmir State had 87 (Elected) +24 (from Pakistan occupied Kashmir) = 111 seats in Legislative Assembly. After the bifurcation of Jammu and Kashmir State, four seats from Ladakh were reduced (87-4+24 = 107).
Seven seats have been added in legislative assembly. Now the total seats have risen to 107+7 = 114. Again Lieutenant Governor of Jammu and Kashmir can nominate two women members to Legislative Assembly if in his opinion women are not adequately represented in Legislative Assembly. In that case, the strength of Legislative Assembly may go upto 116.
The Jammu & Kashmir Reorganisation (Amendment) Bill, 2019
This bill was introduced in the Lok Sabha on 26th July, 2023 to amend the Jammu & Kashmir Reorganisation Act, 2019. It was passed by the Lok Sabha on 6th December, 2023 and by the Rajya Sabha on 11th December, 2023.
This bill reserves 7 seats for Scheduled Caste and 9 seats for the Scheduled Tribe in the legislative assemblies of Union Territory of Jammu & Kashmir.
Lt. Governor may nominate up to 2 members from the Kashmiri migrants community to legislative assembly. One of the nominated members must be a woman. The Lt. Governor may nominate one member to legislative assembly representing displaced persons from Pakistan occupied Jammu & Kashmir. These includes successors in the interest of such persons.
