Article 370 Is History – Supreme Court Backs Scrapping Of J&K Special Status

The Supreme Court today backed the Centre’s move to scrap special status to Jammu and Kashmir under Article 370 of the Constitution and ordered elections next year.

Article 370 was a temporary provision to ease Jammu and Kashmir’s merger with India, said Chief Justice of India DY Chandrachud, reading out a majority Supreme Court judgment.
The Supreme Court said Jammu and Kashmir should be put on par with other states “at the earliest and as soon as possible”, and called for state elections by September 30, 2024.

The bench gave three separate judgments – one authored by Chief Justice Chandrachud on behalf of himself, Justice BR Gavai and Justice Surya Kant; another concurring judgment by Justice Sanjay Kishan Kaul, and a third judgment concurring with the other two by Justice Sanjiv Khanna – so all the five judges have unanimously upheld the presidential order to scrap Article 370.

Jammu and Kashmir did not retain sovereignty when it joined India and its constituent assembly ceased to exist the moment it merged with India, the Supreme Court said, explaining the decision. “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,” said Chief Justice Chandrachud.

The Supreme Court, however, explained why the state continued to enjoy special status even after its merger with India, despite the state not having “internal sovereignty”.

“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 Supreme Court said.

“All states in the country have legislative and executive power, albeit to differing degrees. Article 371A to 371J are examples of special arrangements for different states. This is an example of asymmetric federalism… Jammu and Kashmir does not have internal sovereignty different from other states,” the Supreme Court said.

Article 370 gave Jammu and Kashmir its own Constitution and decision-making rights for all matters barring defence, communications and foreign affairs. Its removal ended special status to the state.

Contained within Article 370 was Article 35A, which allowed the erstwhile state to define who it acknowledged as permanent residents and gave special rights, such as government jobs and owning property.

The Supreme Court said it did not find it necessary to see whether the reorganisation of Jammu and Kashmir into a Union Territory was valid since it was a temporary arrangement until the election and restoration of statehood.