The Hon’ble Supreme Court is likely to pronounce it’s judgment on the abrogation of Article 370 of the Constitution which mentioned about the special status of the state of J&K. Therefore, in order to understand the judgment, understanding the core issue of the matter becomes really important.
The story of Article 370 begins with the independence of India in the year 1945. India at the time of the independence was struggling to unite all the princely states with the territory of India. Therefore, in order to add J&K with India the then Government of India and the king of J&K Maharaja Hari Singh signed an instrument of accession between them. As per this document the state of J&K would enjoy Special status and which led to addition of Article 370 to the Constitution of India. As per this Article Union of India can frame laws, with respect to the state of J&K, only on the three subjects that are:
2. Foreign Affairs
Rest all laws framed by Central government will not apply automatically to the state of J&K rather the approval of the state legislature of J&K was required as per Article 370(1)(d).
The Constituent Assembly for framing the constitution of State of J&K was formed in the year 1950.
The provision of Article 370 was a temporary provision and it contains within it self a self destructive clause which is clause 3 of Article 370 of the Consitution of India and the same is reproduced as follows:
“(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this Article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification”.
After reading this provision it is clear that the President of India can abrogate the Article 370 of the constitution and end the special status of the J&K. However for doing the same the approval of the constituent Assembly of the State of J&K was required.
However the constituent assembly of J&K dissolved in the year 1957 without recommending anything on this at all.
Therefore now the Union of India cannot abrogate the Article 370 since for the removal of Article 370 the recommendation of Constituent Assembly was required and as there is no Constituent Assembly of J&K is in place the Article 370 could not be abrogated.
However to surpass the same the Union of India indirectly amended the Article 370 by amending Article 367 which is an interpretation clause by “CO 272 Order, 2019”. In that Article the centre added an additional clause as per this clause now the Constituent Assembly of State of J&K should be read as state legislature of J&K.
At the time when the order CO 272 was passed the state of J&K was under the President Rule under the Article 356 of the Constitution. Therefore, at this time the governors recommendation is treated as the state legislatures recommendation. Hence, with the governors recommendation the President abrogated the Article 370.
So, this is how the abrogation of the Article 370 took place.
This same has been described as the heart of the matter that is:
Could the Union Government under the disguise of the amendment of interpretation clause Article 367 of the Constitution and interpret the substantive clauses such as Article 370?
The petitioners contentions are that if the government of India is allowed to amend the Constitution without following the procedure for amendments laid down under Article 368, it can indirectly be allowed amend any provision of the constitution which means changing the constitution at once whims and fancies.
The Supreme Court is to give it’s decision on the same.
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