"Temporary & Transitional" Article 370 Consigned To History
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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By Sunil Garodia
First publised on 2023-12-11 13:23:53
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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
View all posts by this Author
The Article was "temporary & transitional"
Article 370 is history. In a decision widely hailed as 'historic', the 5-judge bench of the Supreme Court, headed by CJI D Y Chandrachud with Justices Sanjay Kishan Kaul, BR Gavai, Surya Kant and Sanjiv Khanna as other members, unanimously decided that the abrogation of Article 370 was constitutionally valid. Terming the provision "temporary and transitional", the bench said that the state of Jammu & Kashmir never enjoyed "internal sovereignty" different from other states that ceded to India after Independence and the special status conferred on it was in line with special arrangements for some other states under Articles 371A to 371J. The court called it "asymmetric federalism" which is intended to bring such states in the mainstream gradually. The court also upheld the bifurcation of the state into two Union territories ( J&K and Ladakh) but asked the Centre to restore statehood in J&K at the earliest. It also directed the Election Commission to hold elections in J&K by September 30, 2024.
J&K was always an integral part of India
The apex court said that "the J&K constituent assembly was not intended to be a permanent body. It was formed only to frame the Constitution. The recommendation of the Constituent Assembly was not binding on the President". It further said that "when the constituent assembly ceased to exist, the special condition for which Article 370 was introduced also ceased to exist. But the situation in the state remained, and thus the Article continued". Citing Article 3 of the J&K Constitution, the court said that J&K was always an integral part of India. The said Article reads: "The State of Jammu and Kashmir is and shall be an integral part of the Union of India." The state's Constitution also provided that this provision cannot be amended.
Presidential proclamations were not malafide
In the next big question before the apex court - of whether the two Presidential proclamations in 2019 which abrogated Article 370 were constitutionally valid, relying on the interpretation in the S R Bommai vs. Union of India case, the court said that the Governor or the President (in J&K's case) was free to assume "all or any" roles of the state assembly and these decisions can be judicially examined only in extraordinary cases. The court further said that there is "no prima facie case that the President's orders were malafide or extraneous exercise of power".
Centre must heed SC's advice
With the challenge to the abrogation now settled by the Supreme Court, the Centre must now heed the court's advice. It must restore full statehood to J&K as early as possible. It must also hold the elections to the legislative assembly by September 30, 2024 as directed by the court. If the idea behind the abrogation of Article 370 was to integrate J&K into India's mainstream, the Supreme Court judgment must act as the catalyst. The Centre must also set up a Truth & Reconciliation Committee, as suggested by Justice SK Kaul, to listen to the people of the state and bring justice to them for the human rights violation they report. As for the politicians in the Valley who are still grumbling and have accepted the verdict grudgingly (as they have no other alternative), they should now stop their disruptive attitude and prepare to fight the elections in the state to usher development in the new J&K and work for its true integration into India. Even without the special status, J&K will always be special to India.
