Article 370 a "temporary provision"; Supreme Court upholds abrogation of Article 370

New Delhi [India], December 11 : The Supreme Court on Monday said Article 370 of the Constitution was only temporary. The decision by Supreme Court implies that Article 370 cannot be restored in Jammu and Kashmir.
A five-judge Constitution bench of the Supreme Court unanimously upheld the validity of the Union government's 2019 decision to abrogate Article 370 of the Constitution which conferred the special status of Jammu and Kashmir, while pointing out that Article 370 is a "temporary provision".
A five-judge Constitution bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant said, "It can be garnered from the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution that it is a temporary provision."
Meanwhile, on Supreme Court constitutionally validating the removal of Article 370, Group Captain Mahesh Upasani (Retd) said, "The nation welcomes the Supreme Court's decision on Article 370's abrogation. The abrogation itself was a death knell for the separatists and today's decision of Supreme Court is a historic decision on a historic initiative of Modi Government. I construe it as a tribute to those who have laid down their lives in protecting the unity of a country and also J&K especially..."
Furthermore, Senior advocate and Rajya Sabha MP Mahesh Jethmalani termed it as "historic decision."
"It's a historic decision. The whole country should be very happy. It marks the Supreme Court has given its imprimatur, its seal on the complete integration of Jammu and Kashmir with the country and they've upheld even the reorganization aspect part of it. They've recognized the validity of Ladakh being a separate Union territory," he added.
YSRCP MP V Vijayasai Reddy said that the mistakes that Nehru ji and Indira ji committed insofar as Kashmir is concerned, that can never be forgotten in the annals of Indian history.
"The mistakes that Nehru ji and Indira ji committed insofar as Kashmir is concerned, that can never be forgotten in the annals of Indian history. The problems faced by Kashmiris till Article 370 was abrogated, are also because of Congress' misdeeds and misrule. Now that Article 370 has been abrogated, the blunders that Nehru ji and Indira ji committed have to be undone. So, the present government has to undo the blunders committed by Nehru family who I have described as 'pseudo secularists'...Now that the BJP has taken appropriate measures in abrogating Article 370, the issues would be sorted out and peace would prevail in Kashmir...Opposition walked out because they were not in a position to respond to the issues that had been raised by the treasury benches and the Home Minister...They walked out on flimsy grounds," he added.
Meanwhile, Shiv Sena (UBT) MP Sanjay Raut reminded PM Modi that he had given a guarantee in 2014 that Kashmiri Pandits would be rehabilitated back at their home in the Valley.
"This is a very important verdict. PM Modi had given a guarantee in 2014 that Kashmiri Pandits would be rehabilitated back at their home in the Valley. That the Kashmiri Pandits would be rehabilitated in 2024 and they would also receive their right to vote - PM Modi would have to give the guarantee. Otherwise, he should tell the country that he lied and this was just 'jumlebaazi' on Kashmiri Pandits. If you can bring PoK to India by 2024, do it and our dreams for 'Akhand Hindustan' would be complete. Have elections in J-K in 2024," he said.
During Union Home Minister Amit Shah's reply to the discussion on J-K Reservation (Amendment) Bill, 2023 and J-K Reorganisation (Amendment) Bill, 2023, the Opposition's walkout from Rajya Sabha on which JMM MP Mahua Maji said that some words were objectionable.
"They were very insulting. So, it was decided to walk out. The address was very one-sided. Attempts were being made by the current government to take all credit. It seemed as if the previous governments did nothing in all these years," she added.
Congress MP Rajiv Shukla said that Opposition MPs walked out because when there was a discussion going on J-K's issue, he (Amit Shah) constantly kept saying 'Ghamandiya gathbandhan.'
"Our LoP stood up and asked him to speak on Kashmir's issue, and why he had so many issues with the INDIA alliance," he added.
Congress MP Pramod Tiwari said that there was no reply, it was "gaalion ki bauchhar".
"The one who is no more in this world was also abused. We walked out as 'ghamandiya' term kept being used even when the entire House raised an objection. But he didn't withdraw the remark as he was drunk in arrogance. So, we thought it better to boycott the House and not listen to abuses," he added.
Shiv Sena (UBT) MP Priyanka Chaturvedi said, "Whenever we were diverting from J&K's issue, we were getting reminders from the Chairman not to divert away from the topic but when Union HM in his reply, diverted from J&K's issue and started speaking on Dheeraj Sahu and his corruption, we decided to walk out from the Parliament..."
Union Minister and BJP MP Sarbananda Sonowal said that Opposition had no logic, so they walked out.
"It is clear that the Opposition had no logic, so they walked out. The way Supreme Court upheld the decision of the govt on Article 370 shows that the decision that was taken under the leadership of PM Modi and the bill tabled by Union HM Amit Shah in the Parliament was right for the safety of the country," Sonowal said.
BJP MP Sushil Modi said that they had to boycott it. This is just an excuse that he called them 'ghamandiya'.
"They had to boycott it. This is just an excuse that he called them 'ghamandiya'. They are called 'ghamandiya' every day...They were not ready to listen about the achievements regarding OBCs...Their issue of caste census could not pick up, their issue of caste census in the three states (where Congress lost) was deflated. They walked out when discussion began on OBC," he added.
The apex court said Article 370 was enacted due to wartime conditions in the State and was meant to serve a transitional purpose.
"Article 370 was introduced to serve two purposes. First, the transitional purpose: to provide for an interim arrangement until the Constituent Assembly of the State was formed and could take a decision on the legislative competence of the Union on matters other than the ones stipulated in the Instrument of Accession, and ratify the Constitution; and second, a temporary purpose: an interim arrangement in view of the special circumstances because of the war conditions in the State," the Constitution bench stated in it's verdict
The top court further said, "We have held that a textual reading of Article 370 also indicates that it is a temporary provision. For this purpose, we have referred to the placement of the provision in Part XXI of the Constitution which deals with temporary and transitional provisions, the marginal note of the provision which states "temporary provisions with respect to the State of Jammu and Kashmir", and a reading of Articles 370 and 1 by which the State became an integral part of India upon the adoption of the Constitution."
The petitioners, challenging the abrogation of Article 370, had said that Article 370 was no longer a "temporary provision" and it had assumed permanence post the dissolution of the Constituent Assembly of Jammu and Kashmir.
The top court held that the State of Jammu and Kashmir did not retain an element of sovereignty when it joined the Union of India.
The apex court said that although Maharaja Hari Singh, the erstwhile ruler of the princely state, issued a proclamation that he would retain his sovereignty, his successor Karan Singh issued another proclamation that the Indian Constitution would prevail over all other laws in the state.
"Article 370(3) was introduced for constitutional integration and not for constitutional disintegration. Holding that 370(3) cannot be used after constituent assembly was dissolved cannot be accepted," it added.
It upheld CO 272 issued by the President on August 5 to the extent it made provisions of the Constitution of India applicable to Jammu and Kashmir.
Further, it took into note Solicitor General Tushar Mehta's submission that the Statehood of Jammu and Kashmir will be restored, except for the Union Territory of Ladakh.
"In view of the statement we do not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3. However. we uphold the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State," the bench added.
Restoration of Statehood shall take place at the earliest and as soon as possible, it added. The Constitution bench was hearing a batch of petitions challenging the abrogation of Article 370 of the constitution and bifurcating the state into two Union Territories.
Justice Sanjiv Khanna while upholding the abrogation of Article 370 in Jammu and Kashmir, expressed concern on conversion of a State into Union Territory saying it has "grave consequences" and it denies the citizens an elected State government and impinges on federalism.
"Union Territories are normally geographically small territories, or may be created for aberrant reasons or causes. Conversion of a State into Union Territory has grave consequences, amongst others, it denies the citizens of the State an elected State government and impinges on federalism," Justice Khanna said in a concurring but separate judgement.
A number of petitions were filed in the top court including those of private individuals, lawyers, activists politicians and political parties challenging the Jammu and Kashmir Reorganisation Act, 2019, which splits Jammu and Kashmir into two Union Territories -- Jammu and Kashmir, and Ladakh.
On August 5, 2019, the Central government announced the revocation of the special status of Jammu and Kashmir granted under Article 370 and split the region into two Union territories.