Note4Students

From UPSC perspective, the following things are important :

Prelims level: Article 370

Mains level: Read the attached story

article 370

Central Idea

There are ongoing Supreme Court deliberations regarding the abrogation of Article 370.
This article delves into the historical context, legal intricacies, and broader socio-political implications of this pivotal constitutional provision.

Historical Context of Accession

Geo-Political Situation: Jammu and Kashmir’s unique special status originated from the tumultuous geo-political circumstances following India’s Independence and Partition.
Standstill Agreements: Maharaja Hari Singh’s decision to enter into “Standstill Agreements” with both India and Pakistan highlighted the State’s strategic positioning and economic interests.
Instrument of Accession: Faced with internal turmoil and external aggression, Maharaja Hari Singh’s Instrument of Accession sought India’s military assistance while retaining significant autonomy in internal matters.

Instrument of Accession’s Reflection: Article 370 was crafted in line with the Instrument of Accession’s principles, preserving the unique terms of Jammu and Kashmir’s association with India.
Autonomy Preserved: This provision aimed to strike a balance between safeguarding the State’s autonomy and integrating it into the larger Indian Union.
Limited Legislative Authority: Article 370 outlined a limited scope for Parliament to legislate on certain subjects, primarily defense, foreign affairs, and communications, with consultation and concurrence requirements.
Special Relationship: This provision established Jammu and Kashmir’s distinct relationship with India, emphasizing that its integration would be contingent on mutual consent.

Long-Standing Opposition: The abrogation of Article 370 was a persistent demand of the mainstream political party and its precursor.
Multistage Process: The process of abrogation involved presidential orders, amendments, and parliamentary resolutions, culminating in its nullification.

Lack of Consultation: Senior litigant accused the Union government of ignoring the will of the people of Jammu and Kashmir during the Article 370 abrogation process.
Series of Executive Acts: He highlighted that the abrogation was executed through a series of executive acts, starting from the dissolution of the Jammu and Kashmir Legislative Assembly and state government.
Changing Provisions: He pointed out that the proviso to Article 370 (3) was altered to sidestep the need for the recommendation of the now-defunct Jammu and Kashmir Constituent Assembly before rendering Article 370 inoperative.

Federal vs. Quasi-Federal: Litigant underscored that the relationship between the Union government and Jammu and Kashmir was purely federal, distinct from other states’ quasi-federal relationships.
Consent of the State: He argued that such significant decisions should have required the consent of the state and its people, considering the unique federal structure.

Permanent Character of Article 370: The CJI raised a significant question about the permanence of Article 370 in the Constitution. He inquired whether a constitutional amendment was required to transform its temporary nature into permanence.
Jammu and Kashmir Constituent Assembly: He asked whether the absence of abrogation by the Jammu and Kashmir Constituent Assembly before its dissolution in 1957 should be considered as deeming Article 370 permanent.

Ans. No Comparison with Brexit-Type Referendum

Brexit Referendum: The CJI referenced the Brexit referendum as a political decision taken in the U.K. which does not align with India’s constitutional framework.
Uniqueness of Constitutional Democracy: India’s democracy is grounded in the Constitution, and thus decisions like Article 370’s abrogation involve adherence to established legal procedures.

The ongoing courtroom exchange underlines the essence of constitutional democracy in India, wherein the expression of public opinion occurs through established democratic mechanisms.
The Chief Justice’s observations and the petitioners’ arguments shed light on the intricate balance between executive actions, parliamentary representation, and the preservation of constitutional principles.