Verdict on Article 370 ends prolonged row

Special powers granted to J&K were not permanent, rules SC

The legal and Constitutional issues involved in the abrogation of Article 370 on August 5, 2019, have been settled with the Supreme Court upholding the Union government’s decision. The five-judge Constitution bench has endorsed not just the substance of the decision but also the process and procedure adopted by the government. One major criticism of the decision, raised even by those who agreed with it, was that the procedure was wrong and faulty. The court has rejected this by asserting that the President and parliament have the powers to take the decision in the absence of the state assembly, which stood dissolved with the imposition of Article 356 before that.

The most important finding of the court, which became the basis for the judgement, was that Jammu and Kashmir did not enjoy any sovereignty, distinct from other states, when its accession was made to the Indian Union. Article 370, which gave special powers to the state, could not be considered a permanent feature. It was always a transient and interim provision. The court said there was no limitation to the President’s powers and actions after proclamation of President’s rule. Chief Justice of India (CJI) Justice D Y Chandrachud made it clear that the President’s power to scrap Article 370 subsisted even after the Constituent Assembly of Jammu and Kashmir ceased to exist in 1957. This was one major blemish that was cited as a ground to weaken the President’s decision. The court concluded that holding the President to have no such power after the dissolution of the state’s Constituent Assembly would lead to the freezing of the process of integration. That would have gone against the intent of accession itself. While holding that the bifurcation of the state into union territories was valid, the court ordered restoration of J&K’s statehood at the earliest. It also directed the Election Commission to hold elections in J&K by September 30, 2024. But it should be noted that the court has not accepted the government’s power to change the status of a state. It has said there was no need to examine the J&K Reorganisation Act because the government had promised that the UT would be returned to statehood. The judgement also gives fresh insights into other issues like the President’s powers under Article 356, which will be relevant in future. The recommendation for setting up a truth and reconciliation commission should be pursued too.

The verdict will give a major political boost to the government, which sees removing the special status of Kashmir as one of its prime ideological planks. The opposition, which has diverse views on the matter, will face the challenge of framing a united and coherent response.