The political tug-of-war on the issue aside, there are also speculations that the BJP’s move to delete Article 370
could be challenged legally in the Supreme Court.
The government’s decision to amend Article 367 to replace the constituent assembly with the Legislative Assembly could also come under challenge. If the apex court agrees to hear the petitions challenging the removal of Article 370, it would be interesting to see if there is an immediate status quo on further proceedings or decide on it after hearing all the petitions.
The decision of the government flies in face of a 2016 judgment by a two-judge apex court Bench of (Retired) Justice Kurian Joseph and Justice Rohinton Fali Nariman, which had held that the provision had over the years acquired permanent space in the Constitution and could not be abrogated now.
In the judgment, the two-judge Bench had said though it can be noticed in the marginal note states that Article 370
is a temporary provision with respect to Jammu and Kashmir, unlike Article 369, which is also a temporary provision limited in point of time to five years from the commencement of this Constitution, no such limit is to be found in Article 370.
“Having regard to all these factors, this Court clearly held that though the marginal note refers to Article 370 as only a temporary provision, it is in fact in current usage and will continue to be in force until the specified event in sub-clause (3) of the said Article takes place,” the two-Judge Bench had then held.
Ram Madhav tweeted an old picture of Narendra Modi where he is seen sitting on a dharna demanding abolition of Article 370 from Jammu & Kashmir
The view of the top court was reiterated in a 2018 observation of a two judge Bench of (Retired) Justice A K Goel and Justice Nariman, which held that the provision could not be scrapped now.
What has changed
Dealt with special powers conferred upon Jammu & Kashmir
Allowed the state Assembly to make its own Constitution
Allowed the state to decide on who is/is not permanent resident
Laws applicable to rest of India: RTI, RTE, Minorities Acts will apply to J&K
Residents not domiciled in state can buy properties, settle down in state
J&K will now be a Union Territory with legislature, while Ladakh will be a Union Territory without legislature
Apart from the cases and the decisions taken by the apex court, the Delhi High Court had in 2017 also dismissed a plea moved by Kumari Vijayalakshmi Jha, who had alleged that continuance of Article 370 was a “continuing fraud” being played upon the citizens of the country.
The high court had then cited the apex court’s 2016 judgment and dismissed the petition.
Total Recall: Article 370
October 26, 1947: The Instrument of Accession (IoA) is signed by then ruler Raja Hari Singh. It mentions in Clause 5 that accession terms cannot be varied by any amendment of the Act or of Indian Independence Act, unless such amendment is accepted by him by a supplementary instrument
1954: The unique Article inserted in the Constitution through a Presidential order instead of an Amendment moved through Parliament.
November 17, 1956: The Jammu and Kashmir Constitution defines permanent resident as a person who was a state subject as of May 14, 1954 or has been a resident in the state for 10 years on that date with a legally acquired property. Non-permanent residents cannot acquire immovable property, get government employment, scholarships or other aid provided by the state government.
2002: The Jammu and Kashmir High Court strikes down the provision of women losing their permanent resident status if they married a non-permanent resident. Their children still cannot have succession rights.
August 5, 2019: The Union government scraps Article 370
Jha had subsequently challenged the high court’s decision before the SC, where the matter is still pending. BJP leader Ashwini Upadhyay had also moved a similar petition before the top court in January this year with a plea that the special provision of Article 370 was "temporary" in nature at the time of framing of the Constitution, and thus must be struck off.
The top court had then ordered tagging of his matter with other pending cases on the issue. With Article 370 now gone, these cases are now likely to be dismissed as infructuous.
“Government has resorted to deceit and stealth. The unilateral and shocking decisions today are a betrayal of the trust that the people of J&K had reposed in India when the state acceded to it in 1947. The decisions will have far-reaching and dangerous consequences.” Omar Abdullah, NC leader
“In all my years, I have not seen such a blatant assault on the norms and principles of our democracy. Even emergency had some constitutional cover.” Radha Kumar, Former J&K interlocutor
“Return of the territory in the possession of Pakistan is the next agenda for us. I hope the decisiveness with which Prime Minister and Home Minister have taken this step, will take the next step also when we are ready to recover the land as per the Parliament’s resolution.” Subramanian Swamy, Rajya Sabha nominated member
“India is totally disregarding the international obligations and the country's arrogance will only result in heightening the conflict dynamics in the region.” Imran Khan, Pakistan prime minister
“Historic day. One flag. One nation. One Constitution.” Harsh Goenka, Chairman, RPG Enterprises
“The entire country is waiting to exhale over Kashmir. Can only pray for the safety of everyone there and for an outcome that makes the nation stronger.” Anand Mahindra , Chairman, Mahindra group