Why after SC dismissed all Article 370 pleas, this separatist provision can never be resurrected.

The Supreme Court refused to accept the arguments given in these petitions and rejected all of them. A five-member bench of Chief Justice DY Chandrachud heard the case and the bench said that after examining the petitions, it did not find any error in its earlier decision. Thus it rejected the petitions on the basis of the rules of the Supreme Court.

One Nation, One Constitution

It may be noted that the abrogation of Article 370 has been an important step towards realising the dream of Sardar Vallabhbhai Patel for the One Nation One Constitution. This Article had been preventing Jammu & Kashmir from becoming an integral part of the Indian Union. Article 370 was worked out in late 1947 between Sheikh Abdullah, who had by then been appointed Prime Minister of J&K by the Maharaja and Nehru, who kept the Kashmir portfolio with himself and kept Sardar Patel, the home minister, away from his legitimate function. Thus it won’t be wrong to say that Article 370 eventually became the biggest impediment to the integration of J&K into the Indian Union.

Why the Article was wrong?

The Constitution of India is secular in its original form and unfortunately, Article 370 fostered the political tendency which upheld the appeasement of a particular region and its people who belonged to a specific region and religion thus complicating the situation. Under this Article, many provisions were implemented in the state of J&K which did not match the spirit of the Indian Constitution. Additionally, several laws of public interest are not applicable in the state, due to which the residents were deprived of those provisions which all the citizens of the country had been enjoying since Independence in 1947.

Those still wanting the resurrection of the Article first need to understand that in the first place, the intentions of the Constitution makers were quite clear since the beginning that this would be a temporary provision and thus they had kept the Article in the temporary category. There had been efforts to reconsider it shortly after its implementation back then there was disagreement between JL Nehru’s Jammu and Kashmir policy and this Article after which the then Law Minister Dr BR Ambedkar resigned from the Nehru cabinet.

Article 370 did no good for the people it was meant and it only created a wide distance of the state of J&K from the rest of the country while hindering its development and above all depriving the displaced people and refugees of the fundamental rights guaranteed by the Constitution. The people were even deprived of the protective provisions and reservation facilities made in the Indian Constitution for Scheduled Castes, Scheduled Tribes, Backward Classes, women, and minorities.

It may be noted that because of this Article about 134 laws of the country were not applicable in Jammu and Kashmir. Just for political gains, some parties had been depriving the people of J&K from getting what India got through these laws. This also begs a question when these laws did not hurt the interests of crores of citizens of the entire country, then how could they have harmed a few people of J&K? Thus Article 370 did not help the people of the state but only fostered the politics of separation.

Even Chief Justice D.Y. Chandrachud had pointed out during the hearing that “Article 35A essentially deprived the people in other parts of India of three fundamental rights: the right to residency, the right to acquire permanent property (which was a fundamental right back then) and the right to employment. The Court could not question this as Article 35A provided “immunity” to these violations. In other words, the Court’s power of judicial review was taken away.” But now with the abrogation of Article 370, these violations have come to an end.

Why some clauses are important

After the Supreme Court approved the President’s decision and now also dismissed the petitions challenging the move to Abrogate the Article, this cannot be implemented again. According to several legal and constitutional luminaries, it will be impossible for any government to implement it again after the Supreme Court accepted CO 273 as valid. There is no such provision in Article 370 (3) by which it can be implemented again. If there was Article 370 (3), then any future government could restore the situation before August 5, 2019. Additionally, if any government wishes to do this then it will have to go through Article 368. For which two-thirds majority in both the Houses of Parliament and approval of fifty per cent of the Legislative Assemblies is required, which seems impossible as of now.

Moreover when on August 5, 2019, then President Ramnath Kovind issued CO 272, it was a Presidential order through which Article 367 of the Constitution was amended. It was said that instead of the Constituent Assembly mentioned in Article 370 (3), it will be called Legislative Assembly. This opened the way for Article 370 to be buried forever, opine several legal experts.

Additionally, even the SC has stated that Article 370 was a temporary provision and that the erstwhile state of Jammu and Kashmir had no internal sovereignty.

The ruling that “Articles 370(1)(d) and 367 cannot be used for a collateral purpose in effect to modify or obliterate Article 370…neither the interpretation clause nor the definition clause can be used to substantively alter any of the provisions of the Constitution,” will also deter future governments from bringing in amendments via back-door. Thus it will not be an exaggeration to say that the Constitution bench verdict regarding the abrogation of Article 370 ensured that the Article cannot be resurrected.

The way the state of J&K has seen a reduction in instances of terrorist, separatist and anti-national activities stone pelting, arson, stone pelting, pro-Pakistan slogans and crowds gathering on funerals of terrorists after the abrogation of Article 370, one can be assured that the return of this separatist Article of the yesteryears will never be approved by the people of the country. There has been a boost in tourism, infrastructure development and maximum public participation in the Panchayat elections held in 2020, etc showing that the decision has positively impacted the people.