In Article 370 hearing, the original text and spirit count

Source:The Hindu

For Prelims: Article 370, The Indian Independence Act, 1947, Government of India Act, 1935, Gopalaswami Ayyangar, Article 367, President's Rule, Article 35A, Louise Tillin.

For Mains: Article 370

Highlights Of the Article:

• The Supreme Court of India will start hearing oral arguments on August 2 regarding Article 370 of the Constitution.
• The changes made to Article 370 in August 2019 were significant, including the application of India's Constitution to Jammu and Kashmir and its division into two Union Territories.
• Article 370 had caveats, stating that any changes beyond certain subjects required the ratification of the State's Constituent Assembly, but the Assembly was disbanded in 1957.
• The Union government used Article 367 to amend Article 370, which was seen as an indirect abrogation of the provision.
• The petitioners argue that representative democracy is a fundamental aspect of the Constitution, and the decision was made without the concurrence of the State's elected representatives.
• The Union government contends that previous presidential orders were made without altering the text of Articles 1 or 370.
• The Court will have to consider both the original text and the spirit of the Constitution's federal structure in determining the legality of the President's order.
• The case's outcome will have significant implications for India's constitutional law and the balance of power between the Union and the States.

Context:

The context of the article is the recent changes made to Article 370 of the Indian Constitution. Article 370 granted special status to Jammu and Kashmir, but the changes made to it have made the entire Constitution applicable to the state. The article discusses the legal implications of these changes, as well as the broader implications for the future of Indian constitutional law.

UPSC EXAM NOTES ANALYSIS:

1.Background and Context of Article 370:

• Article 370 of the Indian Constitution granted special autonomy to the state of Jammu and Kashmir (J&K) at the time of its accession to India in 1947.
• The provision allowed J&K to have its own Constitution and limited the applicability of Indian laws to matters of defense, communication, and external affairs.
• Over time, the state's Constituent Assembly was replaced by a Legislative Assembly, rendering the process for making changes to Article 370 uncertain.

2.The Controversial Changes to Article 370:

• In August 2019, the Indian government made significant changes to Article 370, applying the entire Indian Constitution to J&K and dividing it into two Union Territories.
• The government argued that the President's order, which brought these changes, had the concurrence of the "government of the state of Jammu and Kashmir," despite the state being under President's Rule at that time.
• The petitioners argue that the government's actions were a "colourable exercise of power" as they were taken without consulting the elected representatives of J&K.
• The amendment to Article 367, which changed the reference from "Constituent Assembly" to "Legislative Assembly" of the state, effectively abrogated the special status of J&K.

3.Constitutional Implications and the Future:

• The case before the Supreme Court will have far-reaching consequences for India's federal structure and governance.
• The court will need to examine not only the legality of the changes made to Article 370 but also the spirit of federalism enshrined in the Constitution.
• The concept of "asymmetric federalism," wherein some states enjoy greater autonomy, will be a key consideration during the hearing.
• The court's decision will impact the relationship between the Union and the States and the sanctity of subtleties in this relationship.