Can J&K claim sovereignty?

 

What happened?

The Supreme Court hears a batch of petitions challenging the abrogation of Article 370 of the Constitution that bestowed special status in the erstwhile State of Jammu and Kashmir. The petitions were last heard in March 2020.

Why does it matter?

Article 370 substantially limited Parliament’s power to legislate for the State of Jammu and Kashmir and gave greater power to the Jammu and Kashmir state legislature. In August 2019, through a Presidential order, the Centre scrapped the Article and bifurcated the state into two Union territories: J&K and Ladakh.

The Centre claims that after the abrogation of Article 370, life has returned to normalcy in the region after over three decades of turmoil. Stone pelting, bandhs and hartals have all stopped. But on the other hand, the people of J&K are questioning the Centre’s move to revoke Article 370 and divide Jammu and Kashmir without taking consent from the people.

Arguments from both sides:

Side 1 (The petitioners): Article 370 cannot be revoked

J&K’s accession to India was conditional: When the erstwhile state of J&K acceded to India, it never wholly integrated or merged but rather kept its autonomy intact through Article 370. Additionally, the Maharaja of Kashmir did not sign a revised instrument of accession like other states, giving complete control over its affairs to the Union government

Article 370 was permanent: The petitioners argue that according to Article 370(3), the special status of Jammu and Kashmir could not be amended or repealed unless the Constituent Assembly of Jammu & Kashmir recommended it. Even the motion to change, amend and abrogate it must be initiated by the Constituent Assembly. Since the Constituent Assembly of J&K operated only from 1951 to 1957 and ceased to exist after that, Article 370 had attained permanence.

A Presidential order cannot remove it: Based on the premise that Article 370 was permanent, the petitioners argue that any attempt to change it would require a Constitutional amendment. But the revocation of 370 was done by dissolving the state legislature in J&K, imposing President’s Rule and passing the Jammu & Kashmir Reorganisation Act, 2019- hence it is against the principles of federalism.

Side 2: Article 370 can be revoked

It was temporary: The intention of the framers of the Indian Constitution could be gathered from the placement and the language of Article 370 since it was referred to as a “temporary” provision. It existed merely to temporarily manage the situation and ensure that a wider time frame is provided to complete the process of further integration and uniformity in J&K.

Parliament was not consulted while granting special status: The special status was bestowed on Jammu and Kashmir by incorporating Article 35A in the Constitution. It was incorporated by order of President Rajendra Prasad in 1954 on the advice of the Jawaharlal Nehru Cabinet. The Parliament was unconcerned when the President incorporated Article 35A into the Constitution through a Presidential Order.

What’s next?

The Supreme Court has held that the “complete integration” of J&K was done when Article 1 of the Indian Constitution (which reads that India shall be a ‘Union of States’) included J&K as a part of the Union of India. The case hearing is expected to continue throughout the month and will resume on Tuesday next week.