Day-to-day Supreme Court hearings from Aug 2: The issues in challenge to Centre’s 2019 Jammu & Kashmir decisions

Source– The post is based on the article “Day-to-day Supreme Court hearings from Aug 2: The issues in challenge to Centre’s 2019 Jammu & Kashmir decisions” published in the “The Indian Express” on 11th July 2023.

Syllabus: GS2- Polity

Relevance- Issues related to special status of J&K

News- The Supreme Court on Tuesday has said it will begin hearing petitions challenging the changes to Article 370.

What was the modus operandi used by the central government to change the constitutional status of J&K?

The Centre issued an order amending The Constitution (Application to Jammu and Kashmir) Order, 1954, and superseding it with The Constitution (Application to Jammu and Kashmir) Order, 2019.

The new order made “all the provisions of the Constitution” applicable to J&K state. The government also amended Article 367 to add a new Clause (4). It makes the Constitution of India directly applicable to J&K.

Article 370 provided for application of only Article 1 and Article 370 to Jammu & Kashmir. Other provisions of the Constitution did not automatically extend to J&K.

But clause (1)(d) of Article 370 empowered the President of India to extend them through an executive order with the concurrence of the government of J&K.

The President issued a declaration under Article 370(3). It makes all its clauses inoperative except. The provision that all articles of the Constitution shall apply to J&K is still operative.

What are the constitutional issues raised by this move of the central government?

Article 370(3) granted the President the authority to declare Article 370 null and void only if recommended by the Constituent Assembly of Jammu and Kashmir.

However, the Constituent Assembly no longer existed. So, this power of the President became defunct.

Article 370 clarified that the state government referred to the Maharaja of J&K, who acted upon the advice of the council of ministers. There was no state government in J&K. So, the President had no means to obtain the consent of the state government.

There was no constitutional or legal mechanism available to the Central government to revoke or amend Article 370.

The Central government utilised the President’s powers under Article 370(1)(d) to modify Article 367, which provides guidelines for interpreting the Constitution.

A new clause was introduced into Article 367, replacing the “Constituent Assembly of the State” mentioned in Article 370(3) with the “Legislative Assembly of the State.”

During the President’s direct rule in J&K, the President assumed all the functions of the J&K government.

President’s Rule serves as an interim arrangement until an elected government is established, and thus, the administration under President’s Rule should not make decisions that fundamentally alter the constitutional structure of the state.

On what basis, the abolition of Article has been challenged before SC?

The J&K Legislative Assembly did not possess the authority to propose any amendment to the Constitution of India as per J&K constitution.

The Jammu and Kashmir (Reorganisation) Act, 2019 divided J&K into two Union Territories. It is unprecedented in India’s constitutional history.

It violates Article 3 of the Indian Constitution. The President must refer such type of Bill to the legislature of that state.

The Parliament cannot substitute the state legislature. Under the President’s Rule, only the essential powers required to handle the day-to-day affairs of the state can be exercised by Parliament.

The constitutional changes are “colourable legislation“. This is an attempt to disguise the true purpose and are therefore legally invalid.