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Abrogation of A 370

The document provides a thorough analysis of Article 370 of the Indian Constitution, tracing its historical background and the process of its revocation. It examines the Supreme Court's ruling on the legality of revoking Article 370 and assesses the socio-political implications of its abrogation in Jammu and Kashmir.

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0% found this document useful (0 votes)
30 views23 pages

Abrogation of A 370

The document provides a thorough analysis of Article 370 of the Indian Constitution, tracing its historical background and the process of its revocation. It examines the Supreme Court's ruling on the legality of revoking Article 370 and assesses the socio-political implications of its abrogation in Jammu and Kashmir.

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03fl22bcl033
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Redefining the Balance Between Regional

Autonomy And National Integration - A Study of


Article 370 and its Abrogation.
ABSTRACT:

This research paper provides a thorough analysis of Article 370 of the Indian Constitution,
highlighting its historical background, the procedure by which it was revoked, rulings made by the
Supreme Court, and the consequences of doing so. Tracing the history of Article 370 illuminates
the particular events that led to its incorporation into the Constitution and how it affects human
rights. The article assesses the steps done to repeal Article 370 and examines the Supreme Court's
ruling in the case. This study attempts to add to the ongoing discussion on constitutional law,
human rights, and conflict resolution in J&K by offering insights into the implications of its
abrogation.
Keywords: Article 370, Indian Constitution, Historical background, Revocation procedure,
Supreme Court rulings, Human rights, Conflict resolution, Abrogation implications

Research Methodology:

Using a doctrinal and analytical approach, this study draws on primary sources like the Indian
Constitution, court decisions, and commission reports from India. Secondary sources encompass
scholarly publications, newspapers, online sites, and periodicals. A comprehensive examination of
Article 370 and its revocation, encompassing legal, socio-political, and economic aspects, is made
possible by this methodology
Research Questions:

1. What is the legal history of Article 370 of the Indian Constitution and the process of its repeal?
2. What is the view of the Supreme Court on the repeal of Article 370 and what is its view on the
legality and constitutional validity of this important constitutional amendment?
3. How has the revocation of Article 370 affected the socio-political scene, administration, and
economy of J&K?

Research Objective:
1. To explore the authentic improvement of Article 370 within the Indian Structure, looking at the
lawful, political, and sociocultural angles that impacted both its creation and afterward annul.
2. Examine the Supreme Court of India's case law regarding the repeal of Article 370, paying close
attention to how it interprets the constitutionality of the rulings and how they affect federalism,
regional autonomy, and national integration.
3. To evaluate the sociopolitical repercussions of Article 370's repeal in J&K, taking into account
how it may affect political dynamics, governance systems, and human rights
INTRODUCTION:

In geographical terms, J&K was the most princely state in India and its leaders had a degree of
authoritarian power similar to that of other princely countries. Four provinces, Gilgit, J&K, Ladakh
and Jammu, were carved out of the state geographically and in cultural terms. More over two thirds
of the state's population, or over 90% of the population in the first two, were Muslims. On January
31, 1992, Maharaja Hari Singh issued a legislation pertaining to the "Hereditary state subject,"
which prohibited outsiders from obtaining governmental employment or owning real estate in the
state. Nonetheless, there have occasionally been extraordinary and unique appointments of select
high authorities1.

Although the regulations prohibited the government from tampering with Article 370, the BJP
sought to alter the constitution and make India more Hindu-centric, so they devised a cunning plan
to remove Kashmir's special status. It wasn't just or proper. The Social Contract Theory is a long-
standing theory that asserts that individuals have rights and obligations simply by virtue of their
agreement to coexist in a community. In essence, the Social Contract is a pact between members
of a community or between those members and their leader It's been discussed by political theorists
such as John Locke, Jean Jacques Rousseau, and Thomas Hobbes. These men held the opinion that
the foundation of the government is an agreement made by those who previously had no
government. Thus, there are two periods: before and after government. However, the
administration continued deceived the people of Kashmir despite our laws and beliefs 2.

By the Instrument of Accession, the legislature of the Dominion has been given powers of defence,
foreign affairs and communications with regard to the State. In view of the state's current war,
which lasted from 1949 onwards, a number of terms in the Instrument of Accession were intended
to be included by the drafters of the Indian Constitution so that they could show how legally

1
Basu, D. D., Manohar, V. R., Banerjee, B. P., & Khan, S. A. (2001). Introduction to the Constitution of India (p. 74).
Wadhwa.
2
Kapur, Manavi. "A Timeline of Key Events that Shaped the Unique Identity of Kashmir within India." Published
August 6, 2019.
connected the Union was with the State. Therefore, the creation of Article 370 has recognised the
specific status of the Constitution in J&K. 3.

In accordance with Article 370 of the Indian Constitution, J&K was granted special powers in a
territory disputed by China, Pakistan and India. With the exception of communications, foreign
policy and defence, as well as its own laws and flags, it delegated most matters to the State. It was
done by N. Gopalaswami Ayyangar, a member of the team that prepared India's Constitution in
1949. Nevertheless, on August 5, 2019, the Government of India took substantial steps to abolish
Article 370.4.

HISTORICAL IMPORTANCE
Maharaja Gulab Singh, ruler of J&K, purchased this territory from the East India Company by
signing a treaty in Amritsar in 1846. Following India's independence from the British Empire in
August 1947, Pakistan was established as a predominantly Muslim nation. Currently, numerous
princely kingdoms in India, notably Hyderabad, J&K, and Junagadh, were undecided about joining
Pakistan or India. Sardar Vallabhbhai Patel, the Indian Home Minister, made an effort to persuade
these states to accede to India. Maharaja J&K's Hari Singh remained undecided and simply struck
a deal with Pakistan to maintain the status quo. However, some Pakistani fighters assaulted J&K
in October 19475. At that point, Hari Singh realized he needed assistance and turned to India.
Jawaharlal Nehru, the prime minister, and Home Minister Patel consented to send troops, but only
after Hari Singh signed an Instrument of Accession (IOA) stating that India would assume
command of defense, foreign policy, and communications. When he nodded, Indian soldiers
entered. However, the violence has continued ever since 6.

3
Rao, B. Shiva, V. K. N. Menon, Subhash C. Kashyap, and N. K. N. Iyengar. *The Framing of India's Constitution*.
Vol. 5, 1966.
4
Daily Editorial Based Quiz, "Article 370: Decoding the Supreme Court Verdict" (13 Dec 2023), referencing "Today,
a clean canvas for every child in J&K," The Indian Express (12 Dec 2023).
5
4 Kashmir had 4.02 million people, against Hyderabad’s 16.33 million, Mysore’s 7.32 million, and
Travancore’s 6.07. It was followed by Gwalior at 4 million. See, letter from Gopalaswami Ayyangar to
Nehru, 18 November 1946(Mumbai: Bharatiya Vidya Bhavan, 2013), vol. 2, at p. 366.
6
Parrey, Arif Ayaz and Bakshi, Gursimran Kaur. "In Re Article 370 judgment: The challenge and what is at stake,"
(December 10, 2023).
On 26 October 1947, Maharaja Hari Singh and India signed the Instrument of Accession, following
India's independence. As a result, J&K gained unique position in India. Then, to formally establish
this unique status, the Indian Parliament passed Article 306, which subsequently became Article
370, on October 17, 1949.7 However, Jammu & Kashmir's preferential treatment didn't start here
. The process that began on January 1927 and ran from 26 October 1947 to 17 October 1949 was
guided by the "Instrument of Accession" as well as other national and international forces.

Kanwar Dalip Singh was designated by the Indian government as their representative in Jammu
& Kashmir as soon as the "Instrument of Accession" was ratified. Giving the state its own status
after independence began with this. It's interesting to note that while many states contributed to
the creation of the Indian Constitution from the start, Jammu & Kashmir didn't participate until
June 1949, near the end of the process8. The Indian government finally acknowledged Jammu &
Kashmir's unique identity on October 17, 1949.

Jammu & Kashmir never had to sign an Instrument of Merger to give up its unique status, in
contrast to other princely states that merged with India. Article 370 of the Indian Constitution,
which had previously been referred to as Article 306, provides for all this. The issue of granting
special status to J&K, despite the fact that it is set out in the Constitution, has been a contested and
debated matter. The Kashmir Valley's residents greatly appreciate this piece since they believe it
to be a safeguard for their individuality and autonomy9. Therefore, it's critical to comprehend how
and why Jammu & Kashmir was granted this unique status in the first place.

Whether they were a Maharaja or a Nizam, the leaders of India believed in democracy and that no
one person should be able to decide what would happen to 468 states and their citizens. They
believed that the desires of the populace took precedence over other considerations. Consequently,

7
“The Origins of the Quit Kashmir Movement, 1931-1947”, Oxford Islamic Studies Online, available
at: http://www.oxfordislamicstudies.com/Public/focus/essay1009_quit_kashmir.html (last visited 24/3/2024)
8
5 Nehru to Patel, 5 October 1947. Das (ed.), supra note 10, vol. 1, at p. 53.
9
4 Nehru’s note to the Congress Working Committee at Wardha, 12 August 1946. Gopal (ed.), supra
note 7, vol. 15, at p. 417. In 1952, Rajendra Prasad in his diary noted that the Maharaja wanted money
to spend on horse-races in Bombay.
when Jammu & Kashmir's Maharaja Hari Singh consented to join India on October 26, 1947, they
needed to make sure the state's citizens approved as well. Furthermore, the Prime Minister of India,
Pandit Nehru, had assured the leader of Pakistan that a vote on the matter would take place under
the auspices of the UN, but that never materialized. In order to make sense of the situation, they
chose to approach J&K differently10.

Here's another thing: Jammu & Kashmir did not immediately become a part of India following
independence, in contrast to the majority of other Indian states. In actuality, it happened three
months later, and the state's army was only able to repel Pakistani attacks because of this. Thus, in
order to save his authority and Kashmir's identity, the Maharaja requested assistance from Indian
soldiers and signed an agreement known as the "Instrument of Accession" on October 26, 1947.
Remarkably, practically every other princely state that joined India was required to sign an
instrument known as the Instrument of Accession, exactly as Jammu & Kashmir was. The thing
is, though, that all those states eventually signed another document known as the Instrument of
Merger with India—either because their governments so desired or because their citizens approved
of it. That was not, however, requested of J&K. Therefore, was to India somewhat like a late arrival
under unusual circumstances, deserving of special consideration in their new country11.

Therefore, on October 17, 1949, the Indian Parliament adopted Article 370 granting J&K special
status in a constitutional amendment. In spite of Maulana Hasrat Mohani's objections, the special
treatment for J&K was justified by Mr. Sardar Patel, Deputy Prime Minister and Home Secretary
at that time, as PM Nehru had not been present in the country. Since then, Jammu & Kashmir has
enjoyed a unique position that allows it to remain a part of India while maintaining some of its
own laws and regulations12. This is comparable to the circumstances in Catalonia, Spain, where
despite being a part of a larger nation, they maintain some degree of autonomy over their own
affairs and maintain their own identity.

10
Mahajan to Patel, 23 October 1947. Das (ed.), supra note 10, vol. 1, at p. 63. See further, Menon,
supra note 3, at pp. 356-357.
11
Ibid, at paragraph 4.
12
“Memorandum on the Kashmir Reference to the U.N.O. – Historical Background”. Choudhary (ed.), vol. 10, at p.
330
ABROGATION OF ARTICLE 370

It was a first when the BJP and the People's Democratic Party (PDP) joined forces to administer
Jammu & Kashmir in March 2015. The Kashmir valley gave the PDP a lot of votes, whereas
Jammu gave the BJP a lot of support. Even though he understood it might not be popular, Mufti
Mohammad Sayeed—who has since gone away—took more than two months to decide to lead
this united government. He described it as a convergence of the "north and south poles." He
intended to first concentrate on development, attending to the requirements of various regions in
accordance with the preferences of the electorate, and then progressively addressing the other
objectives of his party. Following the demise of Mufti Mohammad Sayeed in April 2016, his
daughter Mehbooba Mufti assumed the role of chief minister. The question of whether the party
should continue collaborating in the coalition government is now being debated inside the party.

There are many who think that if a dignified leader such as Mufti Mohammad Sayeed becomes
sidetracked from implementing the "Agenda of Alliance," then his successor would be unable to
accomplish anything significant. They fear that in the Kashmir Valley, this would further erode
the party's popularity. The vast majority of supporters, who like the status quo, believe that Mufti's
attempts to bring about peace and stability should be given more time to see if they are effective.
Just because Mufti is no longer with us doesn't mean they want to give up on it. 13The BJP
government then made the decision to sever ties with the PDP in June 2018. . In November 2018,
the Governor dissolved the Legislative Assembly and the State was taken over by the Federal
Government in December of the same year.

13
Sharma, Keshav. Evolution of Fundamental Rights and Constitutional Remedies. 2019,last visited on 24th March
2024
Formation of constitutional order:

In order to determine if the legal actions taken to remove Article 370 and divide J&K adhere to
the Constitution, it is first necessary to discuss them. The primary focus of this matter is the
Constitution (Application to J&K) Order, 2019, or "C.O. 272." With the permission of the J&Ki
administration, the President issued this under a section of Article 370. However, as per the
Constitution, J&K was ruled by the President at that period, hence the Governor of J&K granted
the agreement in that capacity.

The process for getting elimination of Article 370:

On August 5, 2019, Minister for Home Affairs Amit Shah tabled a bill to reorganise J&K in the
Rajya Sabha. If such a law were to be adopted, J&K would have ceased to exist as one State and
the Union Territories of J&K and Ladakh would have been carved out. Ladakh was not to have its
own government, but J&K was to. In the end, with 125 votes in favour and 61 opposed, or nearly
67% of the total vote, this measure was passed by the Rajyas. The Lok Sabha also passed it on the
same day with 370 votes in favor and 70 opposed, about 80%. The law was signed by the President,
and it has been officially adopted14.

In the Rajya Sabha, the Minister of Home Affairs, Amit Shah, spoke about how the President of
India issued a new rule based on Article 370, the Constitution Application to J&K, 2019C.O. 272.
This new rule supersedes the previous one of 1954. The new Regulation, in contrast to the previous
one which said only a part of India did so, declared that J&K were covered by the entire Indian
Constitution. This implied that the Constitution of J&K was no longer relevant. Although the J&K
administration approved of the President's decree, the Union government ultimately made the final
decision because the state was ruled by the President 15.

Certain modifications were made to Article 367 of the Constitution by the Presidential Order 2019.
A new clause (4) was added, consisting of four components, all pertaining to the interpretation of
certain words. For instance, it stated that the "Governor of J&K" is meant to be understood when

14
Rajya Sabha, Uncorrected Verbatim Debates, dated 5th August, 2019, last seen on 24/3/2024
15
Proclamation No. G.S.R. 1223(E). (2018, December 19). Retrieved from Gazette of India website:
http://egazette.nic.in/WriteReadData/2018/194042.pdf Last accessed on March 24, 2024
it refers to the "Sadar-i-Riyasat acting on the aid and advice of the Council of Ministers." It further
stated that the Governor is included while discussing the "State government."

A portion of Article 370 was modified in another section of the order. It stated that the "Legislative
Assembly of the State" should be discussed in place of the "Constituent Assembly of the State
."Such an arrangement is not novel. According to Jill Cottrell, similar directives were issued
throughout the President's tenure in office in 1954. When the Union government opted to refer to
anything as "concurrence of the state government," in those particular situations, it meant the
Governor.

Home Minister Amit Shah proposed a motion as soon as he gave the Rajya Sabha the Presidential
Order 2019. According to this resolution, the President ought to issue an order in accordance with
Article 370(3) nullifying every provision of Article 370. . Following the adoption of this resolution
by both chambers of Parliament on August 6, 2019, the President issued a Constitutional Order
No 273. In this new order, Article 370 was amended to state that all provisions of the Indian
Constitution should apply to J&K without modification or exception, even if they conflict with
other provisions of the Constitution or local law. 16.

APPLICATION OF JUDICIAL REVIEW

In response to a number of petitions questioning the validity of the measures described above, the
Union of India made a counter sworn statement before the court. They contended that the courts
shouldn't have the authority to judge the decisions made by the President and Parliament. The
extent of the courts' authority to review these rulings is called into question by this 17. The
government's motivations for eliminating Article 370 and dividing J&K are to put an end to
separatist and terrorism and to completely integrate J&K into the nation, as was covered in Part V.
Additionally, they think that lifting Article 370 will improve state development and enable

16
Noorani, A.G. (2011). Article 370: A Constitutional History of J&K (Kindle Edition). New Delhi: Oxford University
Press. Retrieved from location 1005.

17
Counter Affidavit on behalf of Union of India, Mohd. Akbar Lone v. Union of India, WP(C) 1037 of 2019 (S.C.)
(Pending), para 10.
residents to take advantage of government initiatives. These choices were made as part of the
policy-making process since they were made when the President was in office. In order to
appreciate how courts might consider this case, it is helpful to know how they typically treat policy
questions, particularly when the president is in office.

According to the Court in the State of Punjab v. Ram Lubhaya Bagga case, judges often don't
challenge government policies unless they appear unjust or violate the law or the Constitution18.
In a similar vein, the Court held in Ugar Sugar Works v. Delhi Administration that the government
should make the decision about whether a policy was appropriate or inappropriate in a particular
circumstance or period19. However, the court may intervene if a policy appears to be unfair,
irrational, or to have been created with malice. However, the Court discussed Article 356—which
addresses the President's power in states—in S.R. Bommai v. Union of India. They claimed that if
the President abuses his or her authority, it can be interpreted as unjust or done with malice. For
instance, it can be deemed excessive if the President dissolves the legislature or abolishes a state
government when it is not required. According to the Court, resolving issues under Article 356
must be equitable and situation-specific20.

In that case, the Court of Justice is responsible for ensuring a fair and proportionate manner in
which Article 370 has been repealed and J&K's division dealt with on the basis of previous judicial
decisions.. Examining whether the President and Parliament overreached themselves in using
Article 356 powers to impose President's control in J&K is particularly crucial for the Court. To
address the issues during President's rule, the Court must determine whether repealing Article 370
and dividing J&K was actually required or a good idea 21. To put it briefly, the Court must
determine whether the President and Parliament complied with the provisions outlined in Article
356 of the Constitution when they passed the Reorganisation Act and issued directives such as
C.O. 272.

The Supreme Court held that the President may, in accordance with Article 370 of the Indian
Constitution, apply it to J&K by means of a suitable amendment and could also significantly alter

18
State of Punjab v. Ram Lubhaya Bagga, AIR 1998 SC 1703
19
Ugar Sugar Works Ltd. v. Delhi Administration, AIR 2001 SC 1447,
20
Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501.
21
Ibid
its application. The petitioner challenged a 1954 Presidential order that modified Article 81 of the
Indian Constitution regarding J&K in Puranlal Lakhanpal v. President of India. The Lok Sabha's
members must be chosen directly by Indian citizens, according to Article 81. On the other hand,
an indirect election process was involved because the 1954 decree stipulated that representatives
from J&K would be nominated to the Lok Sabha based on a recommendation by the state
legislature22.

The Supreme Court was presented with an interesting case in Mohd. Maqbool Damnoo v. State of
J&K23. Article 367, the definition clause of the Constitution, was amended by an order by the
President on November 24, 1965, in relation with Article 370 of the Constitution. The purpose of
this amendment was to change "Governor" from "Sadar-i-Riyasat" in the Explanation to Article
370. In essence, a nominee Governor took the place of J&K's elected Sadar-i-Riyasat. According
to Article 370(3), the J&K Constituent Assembly has to recommend any changes made to Article
37024.

Without the consent of the Constituent Assembly, which had by then been dissolved, this order
changed the Explanation to Article 370. In this case, the petitioner contended that the presidential
decree was unlawful since it was issued against the advice of the J&K Constituent Assembly.
Moreover, it aimed to accomplish by an alteration of Article 367 what could not be done without
the proposal of the Constituent Assembly through an adjustment of the Explanation of Article 370.

The court rejected the claim, ruling that the Explanation to Article 370 was no longer required
because Sadar-i-Riyasat was no longer in place in J&K. All the Presidential decree did was provide
clarification on a point that the court would have come to anyhow through interpretation. This
clarification made it clear that the Governor took over from the Sadar-i-Riyasat and that the
Governor of J&K should be referred to whenever the term "Sadar-i-Riyasat" appears in the
Constitution. The court made clear that it did not, however, examine or offer an opinion on whether
Article 370(3) might now be used to change the terms of Article 370(1) and (2). 25

22
AIR 1970 SC 1118 (SCC Online version) (5 judges)
23
(1972) 1 SCC 536
24
Noorani, supra note 61, at p. 5911
25
In the J&K Constitution, the word “Sadar-i-Riyasat” was replaced with the word “Governor” under
the J&K (Sixth Amendment) Act, 1965
The SC of India held in the State Bank of India v. Santosh Gupta26 case that the State of J&K
lacked any kind of autonomy apart from Constitution. It confirmed that the Constitution
superseded the J&Ki Constitution . The Court of First Instance pointed out that before the President
could pass an order to repeal Article 370, a recommendation by the J&K constituent assembly was
necessary.

ANALYSIS OF SC THE JUDGMENT: In Re: Article 370 of the Constitution27

On December 11, 2023, the Supreme Court of India, presided over by Chief Justice Dr. D.Y.
Chandrachud and composed of Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant,
rendered a decision by a 3:2 majority. They were making decisions on petitions that contested the
separation of J&K into two Union Territories and the repeal of Article 370. The Union
Government's decision from August 5, 2019, was affirmed by the Court. In this judgement, three
distinct viewpoints were written. Out of the 476 pages of the ruling, the majority opinion, which
was composed of Justices B.R. Gavai and Surya Kant, was composed by CJ Dr. D.Y. Chandrachud
and accounted for 352 pages. Justice S.K. Kaul's 121-page ruling included a supplemental opinion
he prepared that concurred with the majority. In a three-page opinion, Justice Sanjiv Khanna
concurred with both Justice Kaul and the majority.

The Apex Court stated that Art. 370 was merely intended to be a stopgap measure, put in place to
facilitate J&K's accession to India amid hostilities. They declared that by September 30, 2024,
elections in the legislature must take place. The Court rejected the petitioners' contention that
President President's Rule in Jammu & Kashmir precluded the Union government from making
decisions that could not be reversed (the repeal of Article 370 took place during President's Rule).
It was also mentioned that after joining India, J&K lost their sovereignty. The court recommended
that assembly elections be held by September 30 of the following year and endorsed the
government's decision to abolish Article 370. Ladakh's reorganisation as a Union Territory was
also maintained. The former state's Article 370 was a temporary measure implemented during a
period of war, as Justice Chandrachud emphasised.

26
(2017) 2 SCC 538
27
2023 INSC 1058
After sixteen days of arguments, DY Chandrachud, the Chief Justice, led a five-judge bench that
rendered the decision. September 5 was set aside for the decision. J&K, according to CJI
Chandrachud, did not retain "internal sovereignty." He explained that although each state has some
autonomy, this is not an indication of maintaining sovereignty but rather a characteristic of India's
asymmetric federal structure. J&K was granted a special status that was only an enhanced version
of that autonomy—not an entirely new kind. He clarified that J&K was fully merged with India
following Maharaja Hari Singh's signature of the Instrument of Accession. Furthermore, the Chief
Justice pointed out that all sovereignty was irreversibly given up when Yuvaraja Karan Singh
accepted the primacy of the Indian Constitution.

Justice Kaul offered a another perspective. He adhered to the ruling in the Prem Nath Kaul v. J&K
from 1959, which said that the states still have "an element of internal sovereignty." Justice Kaul
further stated that Article 370 was intended to be a stopgap measure because full integration was
always the ultimate goal. Justice Kaul offered a another perspective. He adhered to the ruling in
the Prem Nath Kaul v. J&K case from 1959, which said that the states still have "an element of
internal sovereignty." Justice Kaul further stated that Article 370 was intended to be a stopgap
measure because full integration was always the ultimate goal.

Taking into account Article 370's historical background, phrasing, and placement in the
Constitution under Part 21, which also contains other temporary and transitional provisions, the
court unanimously concluded that it was in fact a temporary provision. This refuted the petitioner's
claim that, following the dissolution of the J&K Constituent Assembly, Article 370 became
irreversible without suggesting that it be removed. On this point, Justices Khanna and Kaul
concurred with the Chief Justice.

According to the Supreme Court, the President's rule is only put into effect when the state's
constitutional system breaks down. During this time, all actions must be logically connected to the
goal of enforcing the president's rule. Only in cases where there is proof of malice is judicial
review—in which the court looks into activities for malicious intent—conducted. Despite claims
that the President cannot make judgements that cannot be reversed, there are no additional
limitations on the President's use of his or her authority. During the President's term, Parliament
also acquires the ability to pass laws and use its state legislature powers. Although the court agreed
that this limits the state's legislative authority, Chief Justice Chandrachud maintained that it was
required while the president was in office. He explained that Article 370, clause (3) permits the
President to unilaterally annul the provisions of the article without the permission of the
Constituent Assembly. According to this provision, before acting in this manner, the President
shall take into account the recommendation of the Constituent Assembly. The Bench did conclude,
however, that the President was not required to consult the legislative assembly or heed the advice
of the Constituent Assembly. If the President had intended to cause harm, the Court could have
reviewed his acts; but, in this instance, the President's actions in rescinding Article 370 through
CO 272 and 273 were not considered malicious.

In agreement with the Chief Justice, Justice Kaul said that the President might use these authorities
to complete J&K's integration with India. The following are the Court's conclusions regarding
Article 370 and other legal issues 28:

Article 370, which recognised the Constituent Assembly, recognised J&K's continued internal
sovereignty, even with Maharaja Hari Singh's consent. The statement underscored that the people
of India hold sovereignty, given that the Constituent Assembly ratified and enacted the
Constitution.. Article 370 was designed to be a provisional measure, with procedures under Article
370(3) to terminate this arrangement and fully implement the Constitution. The dissolution of the
Constituent Assembly had no effect on the President's authority under Art. 370(3), permitting full
integration.

* Article 370(3) upholds the validity of Constitutional Orders (C.O.) 273, which terminated Article
370. C.O. 272 was upheld under Article 370(1)(d) despite certain of its provisions being deemed
ultra vires. It was deemed appropriate to impose President's rule upon the dissolution of the
Assembly, and emergency powers were deemed lawful, provided that they were examined by the
courts.

* Since Statehood would be restored through elections, it was judged unnecessary to contest some
provisions of the Reorganisation Act pertaining to Article 3. Union Parliament carried out its duties
in spite of the State Legislature's absence, which supported the Act's legality. The Ladakh
separation was lawful since the Centre was authorised by Article 3 to divide J&K into two regions.

28
Supreme Court Observer. "Challenge to the Abrogation of Article 370, 2023."
Jammu & Kashmir's statehood must, however, be reinstated as soon as possible. There is no way
to postpone the assembly elections because the centre hasn't given a timeframe for the restoration
of statehood. Before September 2024, the court mandated elections in Jammu & Kashmir 29

ANALYSING THE IMPACT OF ART 370 ABROGATION:

HUMAN RIGHTS VIOLATION DURING ART 370:

Numerous fundamental human rights are being abused and ignored under Article 370. All Indian
citizens should be accorded human rights, regardless of their caste, colour, race, gender, or religion,
as these rights are intended to benefit society as a whole. Regrettably, the state government of the
valley has not been able to protect the fundamental rights guaranteed to J&K inhabitants by Article
370. There is a lack of protection for children's right to education, discrimination against
marginalised groups, and prohibitions on women marrying outside the state to preserve their
property rights. The J&K constitution does not protect these. Article 370's effects on human rights
include the following:

The gender inequalities in J&K are brought to light by Article 370, particularly with reference to
Article 35A, which limits property rights to women who marry outside the state. It is totally
intolerable to discriminate against women, and action must be taken quickly to stop it.
Furthermore, women and children do not have access to basic fundamental rights, demonstrating
the state's extreme backwardness. J&K citizens are exempt from the laws prohibiting child
marriage and compulsory education for children between the ages of 8 and 14.

Furthermore, Article 370 violates the human rights of the underprivileged groups by intensifying
discrimination against them. Furthermore, despite being the smallest region, the Kashmir valley
enjoys an unfair advantage in electoral constituencies when it comes to political rights, which
causes disparity among the states. As is fundamental to democratic administration, every state
should have an equal opportunity to elect members from their respective constituents.

29
Prakash, Bhaswat. "Upholding the Abrogation of Article 370: Can it be called another Black Spot-on Indian
Judiciary?" January 2024.
In terms of civil rights, it is essential to possess a Certificate of Permanent Residency in order to
be eligible for special privileges in J&K. This clearly breaches human rights under Article 370 by
denying long-term residents who do not have this certificate equal rights, which is against adult
suffrage. Furthermore, minorities lack proper protection because the State Minority Commission
and National Minority Commission do not have jurisdiction over J&K, which compromises
minority rights.

Article 16 ensures equal opportunity in terms of employment rights; however, it is not applicable
in Jammu & Kashmir. The Union government is unable to remedy this prejudice in job concerns;
only persons holding a Permanent Resident Certificate (PRC) are eligible for work rights.
Furthermore, Article 370 does not guarantee the freedom of movement, which violates both Art.
19 and the human rights of the people of J&K.

HAS THE ABROGATION BECOME A BOON OR BURDEN:

Jammu & Kashmir has changed significantly since Article 370 was removed, resulting in the
following changes:

Development and Investment: Prior to now, industrial expansion and land transfer were impeded
by the limitations set forth in Articles 370 and 35A. The fields of education, tourism, and
healthcare were neglected, while restrictions on land ownership prevented the operation of
significant companies. The private and industrial sectors now have room to flourish after these
provisions were removed. Increased trade, tourism, and affluence are all possible outcomes of
industrialization. Additionally, it is anticipated that job and educational prospects would increase,
helping local farmers and enabling women to run modest companies from home.

Previously, the potential for tourism in J&K was limited due to legal complications stemming from
Article 370 and Article 35A. Nonetheless, the state can realise its tourism potential and spur
economic growth and development with more investment in the industry. This could involve
pursuits that boost the state's economy, such as adventure sports, film production, and the growth
of rural tourism30.

Previously: J&K's youth had restricted access to education, which negatively impacted their
chances. Compared to other regions of the nation, there were less opportunities for higher
education. Due to the inadequate quality of the state's healthcare facilities and the lack of private
hospitals, citizens frequently had to seek major medical care outside of the state. Currently, The
state is developing through public-private partnerships (PPP) by building huge hospitals, colleges,
and private schools. The goal of this project is to increase employment prospects locally while
enhancing access to healthcare and education.

Basic Rights: Previously, the people of J&K were not entitled to property rights or The Right to
Education (RTE). When women married outside the state, they often suffered prejudice,
particularly with regard to their property rights. Facilities for education were insufficient, and
problems like juvenile justice and domestic abuse were disregarded. Regardless of where they
married, women now have property rights as a result of the amendments. The Right to Education
Act guarantees children a free education. The state has enacted the Juvenile Justice Act, and steps
are being taken to safeguard children's rights and women's dignity.

J&K had a long history of rampant discrimination against the SC/ST groups. They suffered abuse
from permanent residents and were prohibited from running for office. They had no prospects for
advancement and were only able to work in sanitation. Those who worked in the sanitation service
were denied citizenship and forced to stay in their positions. Many members of the lower classes
were forced to live in forested areas. The human rights and dignity of ST/SC individuals will be
safeguarded by appropriate legislation, ensuring protection of their rights. They will be eligible to
run for office in the regional parliament with a reservation. Reservation rights in employment and
education will be granted, as well as better working conditions and job prospects31.

Previously, the only people allowed to own property were permanent inhabitants, which caused
land values to remain constant when compared to other states. It was not possible for non-residents

30
Neha, Dr. Radhika Dev Varma Arora, Dr. Surender Ajnat.* "Abrogation of Article 370 of the Indian Constitution:
An Analytical Study." IJCRT.org, 2020.
31
Ibid..
to claim land or property in the valley. Following the repeal of Article 370, land ownership will
alter. After J&K's special status is removed, landowners are free to buy or sell property, but no one
will be forced to give up their land.

West Pakistani Refugees: West Pakistani refugees lacked citizenship, property, and political rights.
WPRs will now be able to exercise their rights to citizenship, property, and democracy. Panchayats
could not make decisions without the approval of the State Government, and elections were not
held to choose its members. The rights of Panchayats have been reinstated by the Indian
government, and local entities inside the State will be subject to the 73rd and 74th constitutional
amendments. Panchayats will get direct funding, which will promote development, particularly in
rural regions32.

Policy changes or revisions: J&K was exempt from law changes or revisions unless authorised by
the state government. As a result, Jammu & Kashmir's laws differed from those of other states.
Just like in other states, J&K will be subject to all laws, rules, and revisions. This comprises
legislation designed to promote development and progress. Every segment of the state will be
entitled to fundamental rights, human rights, and guiding principles.

The way that people view J&K as distinct Union Territories will change in this new era of equality
and diversity. It offers hope for a revolution, progress, and sound financial standing. With the
elimination of prejudice, inequality, and separatist, there will now be a single official language,
flag, and constitution. People's confidence in justice and human rights has been restored by this
ruling33.

J&K will develop into major centres for employment, industry, tourism, education, and jobs,
providing its citizens with a bright future. Under the Indian Constitution, the distinctive fusion of
Muslims (Kashmiris) and Buddhists (Ladakhis) will foster a unique culture and the possibility of
further growth.

32
Sethi, Ishita. "Abrogation of Article 370." Nickeled & Dimed, 2 January 2024.
33
Rai, Vinod. "Supreme Court of India Upholds Abrogation of Article 370." ISAS Insights, 19 January 2024.
SUGGESTIONS & CONCLUSION:

The decision to repeal Article 370 came about so swiftly that it was reported nationwide as
breaking news. The Kashmiri people were caught off guard. Although restoring peace and stability
to J&K may be the goal of this move, it would have been preferable if the administration had made
such a big shift more gradually. Furthermore, it would have been better to keep J&K as a unitary
state rather than splitting it into Union territories.

The Human Rights Commission has documented other incidents of violence and fatalities in the
area, mostly involving militants. Families impacted by these occurrences frequently experience
extreme suffering, and many are left without a formal record of their loved ones. As a kind of
assistance, it would be advantageous for the government to give these families money or job
possibilities. It is imperative that women's safety and empowerment in both Union territories be
given top priority. Giving women the right self-defence instruction can improve their capacity for
self-defence and guarantee their safety in risky circumstances. Women ought to be empowered
and allowed the flexibility to follow their dreams in every area of their lives.

For the future growth of the area, it is imperative to make educational investments in young
children. Children can learn the abilities and information required to prosper in the current world
by being given access to the newest resources and technologies. This educational investment will
support J&K's general development and prosperity.

In conclusion, a protracted legal fight over J&K's position inside India has come to an end with
the recent verdict on Article 370 by the SC. Even while the court upheld the government's move
as constitutional, it is still unclear if it will be successful in bringing about long-term peace and
prosperity in the area. It is clear that the complex issue of Kashmir cannot be resolved without
significant political reconciliation brought about by just democratic processes.
BIBLIOGRAPHY

BOOKS:

* Introduction to the Constitution of India” by DD Basu, 2011

* Constitution of India ,By Vijaya Narain Shukla, Mahendra Pal Singh .2001. 11th edition.

* Constitutional law of India, By Jai Narain Pandey, Surendra Sahai Srivastava , 2014.

ARTICLES:

* Jamwal, S. S. (1993, January). Article 370-Its Genesis and Reactions In J&K State. In
Proceedings of The Indian History Congress (Vol. 54, Pp. 467-471). Indian History Congress.

* Ashraf, F. (2002). J&K dispute: Examining various proposals for its resolution. Published by the
institute of strategic studies in Islamabad, Series: Islamabad Papers (20), 1-51.

*. Teng, M. K., Bhatt, R. K. K., & Kaul, S. (1976). Constitutional History and Documents. New
Delhi.

*Singh, M., & Jha, M. (2017). The Special Status Conundrum and the Problem of Rehabilitation
in J&K. Mediterranean Journal of Social Sciences, 8(5), 73-83.

*Institute of Peace and Conflict Studies. (2019). (Rep.). Institute of Peace and Conflict Studies.
doi:10.2307/resrep19799

*Abdullah, M., Mehmood, Y., & Hussain, N. Historical Background and Socio-Cultural Aspects
of Gujjar Community in J&K: A Case Study

* Supreme Court Observer .Challenge to the Abrogation of Article 370, 2023

NEWS PAPERS:

* Noorani A.G. Partition of Kashmir, Economic and political weekly (1996)


* Apurva Vishwanath , Rishika Singh, SC verdict on abrogation of Article 370 Explained
Highlights: Everything you need to know about the landmark judgment, Indian Express December
12, 2023

* HT News Desk, Supreme Court’s Article 370 verdict: A guide to key questions, arguments,
Hindustan Times, Dec 10, 2023.

URL WEBSITES:

* Jawed Naqvi, “Musharraf’s four-stage Kashmir peace plan: We can make borders irrelevant:
India,” Dawn, December 06, 2006, https://www.dawn.com/news/222111.

* Nirupama Subramanian, The Hindu, “India, Pakistan had a solution for Kashmir in 2007:
Kasuri,”http://www.thehindu.com/news/national/india-pakistan-had-a-solution-for-kashmir-in-
2001-kasuri/article6805890.ece.

*https://www.google.com/search?q=Imprisoned+Resistancefinal+for+dissemination&rlz=1C1C
HBD_enIN866IN866&oq=Imprisoned+Resistancefinal+for+dissemination&aqs=chrome.69i57.
3226j0j8&sourceid=chrome&ie=UTF-

* https://qz.com/india/1682124/a-timeline-of-jammu-kashmirs-modern-history-and-article370/

* https://blogs.loc.gov/law/2019/10/falqs-article-370-and-the-removal-of-jammu-andkashmirs-
special-status/

*https://www.businesstoday.in/current/economy-politics/article-370-scrapped-howkashmir-
became-valley-no-investments-unemployment/story/370664.html

* https://m.economictimes.com/news/politics-and-nation/article-370-and-35a-revokedhow-it-
would-change-the-face-of-Kashmir/article show/70531959.cms

* https://en.wikipedia.org/wiki/Revocation_of_the_special_status_of_Jammu_and_Kashm

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