SC Verdict on Art 370 Centre-state balance needs fine-tuning

By -Subhashish Mittra

SC Verdict on Art 370 Centre-state balance needs fine-tuning

The Supreme Court had upheld a 2019 decision by Prime Minister Narendra Modi’s  government to revoke special status for Kashmir, which gave it a degree of autonomy. The court hearings began in August on petitions filed by Kashmiri individuals and groups, but the verdict is seen as a major setback to Kashmiri political groups. But at the same time, the ruling is a big boost for the BJP, especially ahead of general elections due in May. The judgment was also keenly watched by many other countries of the world including India’s neighbours since the region is internationally disputed and one of the main flash points of war in this part of the world.

The 2019 decision by the BJP was a campaign promise to end Article 370, which granted special status to the disputed Himalayan region claimed in full - although  ruled  in part - by both India and Pakistan since their independence from Britain in 1947. Kashmir has been at the heart of more than 75 years of animosity between India and Pakistan and the two nuclear-armed neighbours have fought three of their four wars over it since then.

In its ruling, the apex court also said that Jammu and Kashmir should be restored to the  same  statehood as any other Indian state – with no separate autonomy rights –  “at the earliest and as soon as possible”. The five- judge constitution bench of the Supreme Court ruled that the region’s special status  had  been a “temporary provision” and removing it in 2019 was valid.

“Article 370 was an interim arrangement due to war conditions in the state,” Chief Justice DY Chandrachud said in reference to the provision in the Indian Constitution that provided the special status after Muslim-majority Kashmir’s Hindu ruler signed an agreement in 1947 to join India. The Supreme    Court said that although Maharaja Hari Singh, the then ruler of the princely state, proclaimed that he would retain his sovereignty, his successor Karan Singh issued another proclamation that the Indian Constitution would prevail over all other laws in the state. It added, “The Proclamation reflects the  full and final surrender of sovereignty by Jammu and Kashmir, through its sovereign ruler, to India -- to her people who are sovereign.”

As part of the Instrument  of Accession, India allowed Kashmir to retain its own constitution, flag and criminal code. Kashmir had its own prime minister and president until 1953 when Delhi jailed its prime minister, Sheikh Abdullah, and abolished the post in what it said were efforts to integrate the Muslim-majority region with the rest of India. The Supreme Court said that simply because the Constituent Assembly ceased to exist, it did not mean Article 370 would continue permanently. “The President was empowered to issue the order to abrogate Article 370,” the Supreme Court noted.

It took note of Solicitor General Tushar Mehta’s submission that the statehood of Jammu and Kashmir will be restored, except for the Union Territory of Ladakh. The apex court had directed that steps be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir by September 30, 2024. Restoration of statehood shall take place at the earliest and as soon as possible, he added.

A number of petitions were filed in the Supreme Court, including those of private individuals, lawyers, activists, politicians and political parties challenging the Jammu and Kashmir Reorganisation Act, 2019, which splits Jammu and Kashmir into two Union Territories -- Jammu and Kashmir and Ladakh.

The top court verdict was, however, not palatable to opposition parties which have expressed divergent views on the matter. Political parties in J&K voiced disappointment over the verdict. One major criticism of the decision, raised even by those who agreed with it, was that the procedure was wrong and faulty. But 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. Whatever be the argument, the fact remains that 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. But, looking at the larger picture, one feels the Centre- state balance needs fine-tuning.

The Supreme Court while hearing on the abolition of Article 370 accepted the Centre’s assurance that it does not intend to “touch” the special constitutional provisions protecting the interests of the people of the northeastern States. Like Article 370 Article 371 of the Constitution guarantees protection of the cultural and economic interests, as well as ensures the rule of law. This specific law is applicable for the people of 12 States, including Sikkim, Mizoram, Arunachal Pradesh, Assam, Nagaland, and Manipur. Later on, Union Home Minister, Amit Shas too had reiterated that Article 371 won’t be diluted in North Eastern States.

Article 371 (after amendments so far)-

Article 371A- Naga hills & Tuensang of Nagaland

Article 371B-Bodoland territorial area of Assam

Article 371C-Whole of Manipur Article 371F-Whole of Sikkim Article 371G-While of Mizoram

Article 371H-Whole of Arunachal Pradesh.

Source: Himalayan News Chronicle