SC Verdict on Article 370- Explained Pointwise+ Infographic

The Supreme Court in a 5-0 unanimous ruling upheld the Centre’s abrogation of Article 370 of the Constitution. Chief Justice of India (CJI) D Y Chandrachud presided over the Bench, which also comprised the four other most senior judges of the court- Justices S K Kaul, Sanjeev Khanna, B R Gavai, and Surya Kant.

What is Article 370 of the Indian Constitution?

Article 370- Article 370, was added to the Indian constitution, as a ‘temporary provision’, on October 17, 1949. It permitted the state of J&K to draft its own Constitution. The Constituent Assembly of Jammu & Kashmir was empowered to recommend which articles of the Indian Constitution should apply to the state. It restricted the Indian Parliament’s legislative powers in the state.

Article 35A- Clause 3 of the article 370 gave the President of India the power to amend its provisions and scope. Article 35A stemmed from Article 370 and was introduced through a Presidential Order in 1954, on the recommendation of the J&K Constituent Assembly. Article 35A empowered the Jammu & Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.

Presidential Proclamation Abrogating Article 370- On 5th August 2019, President of India in the exercise of the powers conferred by Clause (1) of Article 370 of the Constitution had issued the Constitution (Application to Jammu and Kashmir) Order, 2019. The laws of the Parliament will now be applicable to the state of Jammu and Kashmir.

What will be the benefits of the SC judgement on Article 370?

1. Promotion of National Integration- Allowing a separate constitution, flag and powers to Jammu and Kashmir had created a sense of separate identity among the people of the state. This had been used to misguide youth and create a demand of separatism among them. The verdict paves a way for the National Integration of J&K with rest of India.

2. Aid in the fight against Terrorism- Owing to cross border terrorism, around 42 thousand people have lost lives in the state. The special status was considered an impediment in fight against terrorism. The verdict has bolstered the powers of the central government in its fight against terrorism in the valley by allowing the application of stringent anti-terror laws like UAPA.

3. Reduction of Corruption and graft- Article 370 resulted in poor anti-graft architecture in the state of Jammu and Kashmir. Anti-corruption agencies could not enter the state, which resulted in massive corruption, money laundering and hawala transactions. With the SC seal on the abrogation of Article 370, the PMLA and FEMA act can be stringently applied.

4. Promotion of economic development- Due to the application of Article 370, the land in the state could only be sold and bought by the permanent residents of the state. As a result, large businesses houses did not invest in the region owing to land concerns. The final stamp of SC, on Article 370, will attract greater investment in the state of J&K.

5. Effective implementation of affirmative policies- Various affirmative legislations such as Right to Education, Right to Information were not available to the citizens of Jammu and Kashmir. Also, the reservations benefits, to OBCs, SCs, STs were not available to the marginalised sections of the state. The SC Verdict will help in effective implementation of these affirmative policies.

What challenges can emerge with the SC verdict on Art 370?

1. Misuse of the President Rule- The majoritarian governments at the centre can misuse the President’s rule to bring irrevocable changes to the states like bifurcation of the state without consulting the state legislative assemblies. The president’s rule was imposed and the Parliament used its power to bifurcate of the state of J&K into two UTs of J&K and Ladakh, without consulting the state legislative assembly.

2. Undermine the federal principles- The Parliament can use its amending powers to undermine federalism and democratic processes. For ex- A backdoor amendment to an article of the Constitution by amending another article. Article 367 was amended to give effect to abrogation of Art 370.

3. Threat to Regional Identity- One of the primary rationales behind Article 370 was to respect and preserve the unique identity, history, and culture of the state of Jammu and Kashmir. This can raise insecurity among the regional communities being accorded special treatment or protection

4. Harmonious Relations- The provision was intended to promote harmonious relations between the region of Jammu and Kashmir and the rest of India. The separatist elements can use this verdict to fuel separatism and radicalism in the state of Jammu and Kashmir.

5. Against the principle of Asymmetric federalism- Asymmetric federalism is enshrined in the Indian constitution, with some special provisions granted to certain states like North-Eastern States and Socio-economically backward states (Art 371). The Verdict has impinged upon the settled principle of asymmetric federalism.

What Should be the Way Forward?

Since Art 370 has become a thing of the past, with SC upholding the abrogation of Art 370, we must look forward to restoring normalcy in the state of Jammu and Kashmir.

1. Set up Truth and Reconciliation Commission- The government of India must set up the Truth and Reconciliation Commission, as directed by the SC, to look into alleged violations of human rights by both state and non-state actors in J&K. It should be based on a dialogue and not become a criminal court.

2. Conduct Elections and restore the statehood of J&K- The Central government must ensure normalcy in the Valley for peaceful conduction of democratic elections and restoration of the statehood of J&K.

3. De-radicalization- More aggressive attempts must be made towards de-radicalization of youth in the valley.

4. Check the misuse of AFSPA- AFSPA provisions must be withdrawn in a phase bound manner from the areas which attain normalcy.

5. Focus on Development- The imminent focus of the government must be on promoting inclusive economic development of the region by effective implementation of the affirmative policies of the government.