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NO LARGER BENCH FOR ARTICLE 370 CASE

Focus: GS-II Governance, Prelims

Why in news?

A five-judge Constitution Bench led by Justice N.V. Ramana on Monday declined a plea to refer to a larger Bench petitions challenging the abrogation of special status of Jammu and Kashmir under Article 370 of the Constitution.

The Bench said it would continue to hear the case on merits.

Conflict in Past Judgements on Status of Jammu and Kashmir

  • The Bench had heard arguments and reserved its decision on whether there was a “direct conflict” between the judgments of 1959 and 1970 on the nature and extent of Article 370.
  • The 1959 judgment, Prem Nath Kaul versus State of Jammu and Kashmir, indicated that Article 370 was applicable only till the Jammu and Kashmir Constitution was enacted on January 26, 1957. After that, no further changes could be made to the relationship between India and Jammu and Kashmir.
  • But some petitioners argued that the Sampath Prakash versus State of Jammu and Kashmir judgment had ignored the 1959 verdict by concluding that Article 370 was permanent in nature and a “perennial source of power” for the Centre to govern its relationship with J&K.

Supreme Court’s Order on the Claimed Conflict

  • Justice Ramana concluded that there was no conflict.
  • The court explained that the “Constitution Bench in the Prem Nath Kaul case- did not discuss the continuation or cessation of the operation of Article 370 after the dissolution of the Constituent Assembly of the State.
  • This was not an issue in question before the court, unlike in the Sampat Prakash case, where the contention was specifically made before, and refuted by, the court”.
  • The order concluded that the court saw no reason to read into the Prem Nath Kaul case an interpretation that resulted in it being in confliict with its subsequent judgments.

Background

  • 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. Through this, Government of India has made modifications in Article 370 itself (not revoked it).
  • With this, the Government of India had dramatically altered the relationship between the state of Jammu and Kashmir and the Indian Union.
JAMMU & KASHMIR AND THE CONSTITUTION 
October 26, 1947: 
Maharaja Hari Singh 
executes the Instrument 
of Accession under the 
Indian Independence Act 
acceding to the Domin- 
ion of India, which was 
to exercise powers only 
in relation to Defence, 
External Affairs and Com- 
munication. 
October 17, 1949: Article 
370 included in the Con- 
stitution making Jammu 
and Kashmir a part of 
India as one of the States 
under Article 1. Except 
Article 1 and Article 370, 
J&K exempted from 
the Constitution. For 
extending any central 
law related 
to matters 
other than 
Defence, 
External 
Affairs and 
Communi- 
cation, the 
concurrence 
of the State Government 
and its further ratification 
by the J&K Constituent 
Assembly was mandatory. 
July 24, 1952: Delhi 
Agreement signed to 
constitute a framework 
for distribution of legisla- 
tive power between State 
and Central legislature 
and extending the Con- 
stitutional jurisdiction in 
the State. It 
gave special 
powers 
to the 
J&K State 
Legislature 
to make 
laws for 
conferring 
special rights and privi- 
leges on its subjects and 
it extended Articles 52 to 
62 of the Constitution to 
the State. 
May 14, 1954: The 
Constitution (Application 
to Jammu and Kashmir) 
Order, 1954, issued by 
the President under 
Article 370, extended 
numerous Articles of the 
Constitution as well as 
the jurisdiction of the 
Supreme Court, Election 
Commission, CAG and 
UPSC to J&K. This Order 
also added Article 35A 
to the Constitution that 
empowered the State 
Legislature to define 
permanent residents of 
J&K and provide special 
rights and privileges to 
them. 
August 5, 2019: The 
Government moves a res- 
olution in Parliament to 
abrogate Article 370 and 
re-organise J&K as two 
distinct Union Territories 
-Jammu & Kashmir and 
Ladakh.

More about Article 370 of the past

  • On October 17, 1949, Article 370 was added to the Indian constitution, as a ‘temporary provision’, which exempted Jammu & Kashmir, permitting it to draft its own Constitution and restricting the Indian Parliament’s legislative powers in the state.
  • It was introduced into the draft constitution by N Gopalaswami Ayyangar as Article 306 A.
  • Under Article 370: The Constituent Assembly of Jammu & Kashmir was empowered to recommend which articles of the Indian Constitution should apply to the state.
  • The J&K Constituent Assembly was dissolved after it drafted the state’s constitution.
  • Clause 3 of the article 370 gives the President of India the power to amend its provisions and scope.
  • Article 35A stems from Article 370 and was introduced through a Presidential Order in 1954, on the recommendation of the J&K Constituent Assembly.
  • Article 35A empowers the Jammu & Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.
  • It appears in Appendix I of the Constitution.
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