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Modi govt's historic move to scrap Art. 370 in Jammu and Kashmir valid, rules Supreme court

by Trans World Features | @twfindia 11 Dec 2023, 07:58 pm

New Delhi: The Supreme Court on Monday ruled that the central government's historic 2019 move to scrap Article 370 withdrawing special status of Jammu and Kashmir is "valid", media reports said.

A five-judge bench, headed by Chief Justice of India DY Chandrachud, hearing on the pleas challenging the revocation of the special status of Jammu and Kashmir, said Article 370 was a temporary provision which was meant to facilitate the region's merger with India.

The Supreme Court has also ordered the Election Commission of India to hold elections in Jammu and Kashmir by Sept 30, 2024.

The Supreme Court said that Article 370 was only a transitory provision during the wartime conditions in J&K.

"It was for a temporary purpose because of war conditions in the State. Textual reading also shows it is a temporary provision and thus it was placed in part 21 of the Constitution," the top court said.

"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," the court said according to media reports.

"Article 370(3) was introduced for constitutional integration and not for constitutional disintegration," the court said.

"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," the top court added, quoted NDTV.

The court said: "The exercise of power by the President under Article 370(1)(d) to issue CO 272 is not mala fide. The President in exercise of power under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist. The President did not have to secure the concurrence of the Government of the State or Union Government acting on behalf of the State Government under the second proviso to Article 370(1)(d) while applying all the provisions of the Constitution to Jammu and Kashmir because such an exercise of power has the same effect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the State Government was not required."

Apart from scrapping Article 370 soon after winning elections in 2019, the Narendra Modi government in 2019 also scrapped Article 35A, which was used to define "permanent residents" of Jammu and Kashmir barring non-residents to buy immovable assets in the valley.

Also the Centre had bifurcated Jammu and Kashmir into two Union Territories- Jammu and Kashmir with an assembly and Ladakh without an assembly. The Modi government also initiated an unprecedented developmental activities in the region to back up with its momentous decision to scrap Article 370.

In August this year, the Centre told the Supreme Court that it was ready to hold elections any time in Jammu and Kashmir, but could not give an exact timeline for restoring its statehood.

Solicitor General (SG) Tushar Mehta, appearing for the Centre, told the Supreme Court, "We are ready for elections at any time in Jammu and Kashmir now."

SG Mehta, however, said steps to restore J&K's statehood were already being implemented gradually, it (the Centre) cannot give an exact time frame for giving back its statehood.

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Article 370 Explained:

1. Oct 26, 1947: On this day the Instrument of Accession,1947 was signed between Maharaja Hari Singh of Jammu and Kashmir and the Government of India paving the way for Jammu and Kashmir to merge with independent India. Singh signed the instrument amid a tribal invasion by Pakistani forces, who were genociding the non-Muslims of the regio

• Oct 17 1949:  Article 370 that granted special status to the former state of Jammu and Kashmir was incorporated into the Constitution of India which itself came into effect on January 26, 1950.

• Jammu and Kashmir was administered by India as a state from 17 November 1952 to 31 October 2019. Article 370 conferred on the state the power to have a separate constitution, a state flag, and autonomy of internal administration. It also barred Indians from outside the state from purchasing property or settling there.

• Article 370 stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the former State's constituent assembly.

• Article 370 of the Indian Constitution said it was a temporary status of Jammu and Kashmir. It was titled "Temporary, Transitional and Special Provisions", stating that the Constituent Assembly of Jammu and Kashmir would be empowered to recommend the extent to which the Indian constitution would apply to the state.

• On May 14th, 1954, then President Rajendra Prasad issued the Presidential order guaranteeing territorial integrity to Jammu and Kashmir and introduced Article 35A which conferred special rights and privileges to permanent citizens of Jammu and Kashmir which its non-permanent residents, even if they were Indian citizens, were not entitled to. This order was passed with the concurrence of the Constituent Assembly of Jammu and Kashmir. Since the state constituent assembly dissolved itself without recommending the abrogation of Article 370, the article was deemed to have become a permanent feature of the Indian Constitution.

• On 5 August 2019, the Indian government issued a Presidential Order superseding the 1954 order, and making all the provisions of the Indian constitution applicable to Jammu and Kashmir. The order was based on the resolution passed in both houses of India's parliament with two-thirds majority. A further order on 6 August made all the clauses of Article 370 except clause 1 to be inoperative.