SC’s verdict upholding abrogation of Article 370 is a landmark decision and a step towards democratic equality

The Supreme Court’s historic verdict upholding the validity of the 2019 Presidential Order and the abrogation of Article 370 heralds a new era for Jammu and Kashmir (J&K). This landmark decision represents a significant stride towards rectifying historical injustices and advancing national integration and democratic equality. The Court’s affirmation that Article 370 was always intended as a temporary provision aligns with India’s broader goals of national unity.

Article 370 emerged from the Instrument of Accession signed by Maharaja Hari Singh of Jammu and Kashmir in 1947. This historic document marked J&K’s accession to India but confined India’s legislative powers to defence, external affairs, and communication. The conditions in this Instrument were encapsulated in Article 370, facilitating J&K’s transition from a princely state to a constituent of the Dominion of India.

Under Article 370, J&K enjoyed a unique constitutional status, distinguishing it from other Indian states. This provision curtailed the Indian Parliament’s legislative power over J&K, entrusting significant authority to the state’s legislature. It was designed to ensure that J&K’s sovereignty remained in the hands of its people, with laws applicable only upon their consent.

At the heart of many debates, Article 370 was seen as a temporary element in India’s Constitution. Its abrogation directly addresses long-standing injustices, particularly towards women, tribal communities, and backward classes in J&K. The erstwhile state laws placed unfair restrictions on these groups. Prior to abrogation of Article 370 in the state of J&K there was gross injustice when it came to the rights of women, tribal communities, and backward classes of society. An example of such gross injustice was that a woman from Jammu and Kashmir who married outside of the state would lose her status as a state subject. Furthermore, it was saddening that present and future generations of backward classes of society who were initially brought to Jammu and Kashmir in 1957 by the State Government have been compelled to remain as sweepers in the State. This was because they were not given the Permanent Resident Certificate. Moreover Article 370’s abrogation will provide a stimulus to the economy of the State. Prior to the amendment, non-Kashmiri Indians, manufacturing firms or multinational corporations were not permitted to invest in land or property but with this recent amendment all is set to change.

The introduction of the Jammu and Kashmir Reorganisation Bill by the Modi Government on August 5, 2019, marked a pivotal moment. It transformed J&K’s political landscape, dividing it into two separate union territories: Jammu and Kashmir, with a legislature, and Ladakh, without one. This move was rooted in a vision to integrate J&K into the Indian Union more fully.

The Supreme Court’s recognition of Jammu and Kashmir’s (J&K) Constitution as subordinate to the Indian Constitution unequivocally asserts that no state constitution can override the sovereignty of the Indian Constitution. This view, which treats J&K’s Constituent Assembly as a legislative body, reinforces the understanding of its legislative intent and practical reality, thus affirming J&K’s essential role in the larger Indian Union. This counters any perception of J&K’s autonomous statehood.

The Court’s finding that J&K is an integral part of India, as shown by Articles 1 and 370, and the absence of a distinct internal sovereignty from other states, are pivotal. The Court noted J&K’s gradual constitutional integration, which culminated with the full application of the Constitution of India. Importantly, the Court observed that Articles 370(1)(d) and 370(3) were intended to enhance, not hinder, constitutional integration. In assessing historical realities, the Court pointed to the 1949 Proclamation by Yuvraj Karan Singh, which stated that the Constitution of India would supersede and invalidate any conflicting constitutional provisions in J&K, effectively annulling paragraph 8 of the Instrument of Accession. This action represented the total and final surrender of J&K’s sovereignty to India. The constitutional framework and other evidence suggest that J&K retained no element of sovereignty. The Court further clarified the issue of sovereignty by stating that all states in India possess legislative and executive powers, though to varying extents. The Constitution allows for specific arrangements for each state, as seen in Articles 371A to 371J, exemplifying asymmetric federalism, similar to Article 370’s application to J&K. Thus, the Court confirmed that J&K does not have an ‘internal sovereignty’ that is distinguishable from the powers and privileges enjoyed by other states in India.

From a human rights perspective, the removal of Article 35A, rectifying the ‘class within a class’s system, aligns with the equality principle of the Indian Constitution. The geopolitical challenges in J&K, marked by a history of terrorism and external influences, also warranted a reassessment of Article 370. The region’s reorganization aims to bolster governance, security, and foster development.

The abrogation of Article 370 is a crucial step towards establishing a governance framework vital for the long-term stability and development of the region. The multifaceted nature of this historic decision, underscored during 16 days of courtroom dialogue, emphasized principles of unity, equality, and justice. It will

The abrogation of Article 370 marks a significant step towards realizing a unified India. It aligns with the principles of national integration, equality, and democratic governance enshrined in our Constitution, redressing historical injustices, and paving the way for development in Jammu and Kashmir. This decision leads to greater national solidarity and a stronger Indian Union. In this new era, Jammu and Kashmir are poised to play a pivotal role in India’s collective future.

Author of this piece, Hitesh S Jain is a Managing Partner at Parinam Law Associates. Views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect Firstpost’s views.  

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