A) ABSTRACT

While addressing the Nation (post-abrogation of Art. 370) on 08.08.2019, PM, Narendra Modi stated the following:
“A dream which Sardar Vallabh bhai Patel had, which Babasaheb Ambedkar had, the dream shared by Shyama Prasad Mukherjee, Atalji and crores of citizens, has now been fulfilled. A new age has begun in Jammu-Kashmir and Ladakh. Now the rights and accountabilities of all the country’s citizens are similar.” Article 370 embodied the spirit of the Instrument of Accession. According to N.G.Ayyangar, discrimination was done concerning this erstwhile state, keeping in view given prevalent special conditions, hoping it would indeed integrate in future like other States. Hon’ble Supreme Court of India in the case in hand has rightly observed that Jammu and Kashmir was and is an integral part of India and that it has no remnants of sovereignty outside the Constitution of India.
Kashmir is the shining jewel embedded in the crown worn by Mother India and it is an undeniable historical, geographical, political and after the present seminal verdict in hand even a judicial truth that Jammu and Kashmir is an inseparable part of India and abrogation of Article 370 which stood as a roadblock in its integration with India is akin to a river joining its major course after overcoming the temporary hurdle in the form of an impediment of Article 370

Keywords

Article 370; Constitutional Orders; integration; Instrument of accession; integral; Sovereignty

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

• Cradled in the majestic Himalayas, Kashmir stands as a symbol of India’s slogan of ‘unity in diversity’ through its rich culture, history, and traditional heritage. Every corner of this land bears witness to its integral connection with India. As the sun sets over the Dal Lake and the stars illuminate the night sky, Kashmir shines brightly as an essential part of India. Article 370 (before its abrogation) which accorded a special status to the State of Jammu and Kashmir in its governance was originally introduced as Article 306-A in the draft Constitution Amidst the proclamation of emergency by the President on 19th December 2018 (as extended on 3rd July 2019) which was approved by the Rajya Sabha on 3rd January 2019, President of India also issued Constitutional Orders 272 and 273 which applied the entire Constitution of India to the erstwhile State.

D) FACTS OF THE CASE

• • By the issuance of Constitutional Orders 272 and 273 on 6th August 2019 Article 370 of the Constitution of India was abolished, the entire Constitution of India was applied to the erstwhile State of Jammu and Kashmir and under the notification issued by the Home Ministry under Section 2(a) of the Jammu and Kashmir Reorganisation Act,2019 the State of Jammu and Kashmir stood bifurcated on 31 October 2019 into the Union Territory of Ladakh and the Union Territory of Jammu and Kashmir.

• • On August 28, 2019, a bench headed by the then Chief Justice of India Ranjan Gogoi referred the matter related to the hearing of petitions regarding the abrogation of Article 370 to a five-judge Constitution bench.

• • Invoking the original jurisdiction of the Hon’ble Supreme Court of India in Dr Shah Faesal and Ors. Vs Union of India [1] the Constitutional validity of the mentioned Orders was questioned before a five -Judge bench.

• • However, the order of the Hon’ble Apex Court was limited to the preliminary issue of reference to a larger bench of seven Justices because the decision of the apex court in Sampath Prakash’s case [2]  was per incuriam to the previous judgment of Prem Nath Kaul [3]. The Court did not touch upon the merits of the case.

• • While rejecting the plea for reference to a larger bench, the Hon’ble Supreme Court of India observed that:

• • “Judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations in a judgment can not be selectively picked to give them a particular meaning.” It observed that only the ‘Ratio Decidendi’ is considered a binding law under Article 141 of the Constitution of India.

• • On 3rd July 2023, the Hon’ble Supreme Court decided to take the matter out of cold storage and listed the matter before a constitutional bench led by the present Chief Justice of India, Dr. Dhananjay Y. Chandrachud.

E) LEGAL ISSUES RAISED

In the present reference case, the Hon’ble Apex Court framed the following eight legal issues:

1. Was Article 370 intended to be a temporary provision or did it acquire a permanent position within the Constitution of India?
2. Is the change made to Article 367, replacing “Constituent Assembly of the State” with “Legislative Assembly of the State” under Article 370(1)(d), legally acceptable or is it colourable legislation?
3. Whether the complete Constitution of India been implemented in Jammu and Kashmir using the authority granted by Article 370(1)(d)?
4. Is the revocation of Article 370 by the President legally flawed without a recommendation from the Constituent Assembly of Jammu and Kashmir, as required by the proviso to clause (3) of Article 370?
5. Whether the Governor’s proclamation on June 20, 2018, utilizing authority from Section 92 of the Jammu and Kashmir Constitution, and the subsequent action on November 21, 2018, under Section 53(2) of the Jammu and Kashmir Constitution to dissolve the Legislative Assembly, constitutionally justified?
6. Whether the Proclamation that the President issued under Article 356 of the Constitution on 19 December 2018 and the subsequent extensions are constitutionally valid?
7. Whether the Jammu and Kashmir Reorganisation Act 2019 are constitutionally valid?
8. Can Jammu and Kashmir be converted from a state to a Union Territory under Article 1(3)(b) of the Constitution during a Proclamation under Article 356 when its Legislative Assembly is dissolved or suspended?

1.  

PETITIONER’S ARGUMENTS

The counsels for Petitioner submitted that:

ISSUE NO. (1)

• • Article 370 is a permanent provision as following the promulgation of the Constitution of Jammu and Kashmir, the Constituent Assembly ceased to hold official capacity, rendering Article 370 indelible in perpetuity

• • Despite its inclusion in Chapter XXI of the Constitution under the title ‘Temporary, Transitional and special provisions’, Article 370 remained a permanent provision within

• • the Indian Constitution, ushering a governance paradigm wherein the state was subject to the auspices of two constitutional frameworks.

ISSUE NO. (2)

• • The term “Constituent Assembly” holds a singular, unambiguous definition, distinct from the Legislative Assembly, with no room for alternative interpretations. The Legislative Assembly does not serve as a replacement or successor to the former, thus rendering Constitutional Order 272 a deceptive/colourable application of presidential authority.

• • Artical147 of the Constitution of Jammu and Kashmir was relied upon to contend that the legislative assembly had no power according to this article to amend the Constitution of India.

ISSUE .(3)

• The petitioners contend that Article 370(1)(d) envisages a piecemeal strategy, restricted to the implementation of individual constitutional provisions rather than the entirety of the Constitution. Thus the entire Constitution could not be implemented all at once.

ISSUE NO.(4)

• • With the formation of the Constitution of Jammu and Kashmir and the disbandment of the Constituent Assembly, only Article 370(1) remains, as its repeal through Article 370(3), necessitated the recommendation of the now defunct Constituent Assembly, rendering revocation unconstitutional.

ISSUE NO.(5)

• • The essential prerequisite of the Governor’s assurance that the state administration cannot function within the constitutional framework was not met as was required by Article 356.

• • The one-sided utilization of Article 356’s authority establishes a concerning pattern, suggesting that similar actions could be taken against any state using constitutional emergency powers. No opportunity was afforded to other parties to demonstrate their strength in the house.

ISSUE NO. (6)

• • When the State’s Legislative Assembly was dissolved, and Governor’s rule was imposed, there was no need for the President’s intervention under Article 356. Consequently, all actions

• • stemming from the Proclamation, such as Central Orders and the suspension of specific provisions, are deemed null and void.

ISSUE NO. (7)

• • The Reorganisation Act circumvented essential procedures of Article 368 by utilizing Article 3, disregarding specific courses of action for general provisions.

• • Article 3’s text and framework don’t endorse reducing a state to a Union Territory, lacking explicit authority for such actions, while historical practice favours increasing federal self-governance rather than diminishing it.

• • The Reorganisation Act did not represent the people of Jammu and Kashmir properly.

ISSUE NO. (8)

• • Suspending the provisos to Article 3 wasn’t merely an ancillary or consequential act of authority under Article 356(1). It exceeded the President’s mandate outlined in Article 356(1)(c), which doesn’t extend to the dissolution of the State itself.

• • Mr. R. Venkataramani, Attorney General for India, argued that border states are a distinct class of territories and their reorganisation under Article 3 ought to receive distinct consideration.

RESPONDENT’S ARGUMENTS

The counsels for Respondent submitted that:

ISSUE NO. (1)

• • Solicitor General of India, Tushar Mehta, on behalf of the Union of India argued that Article 370 is the only provision which provides for a mechanism {by way of Article 370(3)} by which it would cease to be in existence. A provision intended to be permanent would not have such an “inbuilt extinguishing clause” by which it would cease to be operative

• • Article 370 stands as the sole provision in the Constitution explicitly labelled “temporary.” This temporariness is reinforced by its drafting history, discussions in the Constituent Assembly, Parliamentary debates, and the gradual issuance of constitutional orders. In contrast, other provisions in Part XXI are denoted as either “special” or “transitional.”

ISSUE NO. (2)

• The proviso to Article 370(3) was to remain in operation only during the subsistence of the Constituent Assembly of Jammu and Kashmir.
• Given the exercise of constituent power by the Jammu and Kashmir Legislative Assembly through Section 147 of the State Constitution, it possesses equal competence to offer the necessary recommendation under Article 370(3).
• “All the powers of the Constituent Assembly of the State of Jammu and Kashmir were being exercised by legislature of State. Therefore, by necessary implication, the word ‘Constituent Assembly’ in Article 370(3) should have been construed as ‘Legislative Assembly.’ This interpretation was given statutory form by Constitutional Order 272.” This was contended by Counsel Archana Pathak.

ISSUE NO. (3)

• • With the arrival of the Constitution, the former states lost their independence and sovereignty, relinquishing all sovereignty upon signing the Instruments of Accession (which was evolved by the States department headed by Sardar Vallabhbhai Patel), becoming fully integrated into the Dominion of India. Hence complete Constitution of India in its entirety could be made applicable in the State of Jammu and Kashmir as was originally intended.

ISSUE NO. (4)

• • When the State Constituent Assembly dissolves, the proviso to Article 370(3) vanishes, leaving the President as the sole authority under it, obligated to act in the residents’ interests even without a recommendation.

• • Even if the State Constituent Assembly were still active, its role was merely to advise, not compel the President, as recommendations made by it weren’t binding.

• • With the State Legislative Assembly exercising constituent power under Section 147 of the State Constitution, it holds the capability to offer the necessary recommendation under Article 370(3).

ISSUE NO. (5)

• • The petitioners didn’t contest the Legislative Assembly’s dissolution or the Emergency Proclamation under Article 356; their challenge focused solely on actions taken during the Proclamation’s duration.

ISSUE NO. (6)

• • Solicitor General of India, Tushar Mehta argued that it is impermissible for this Court to read in limitations on the powers under Article 356(1)(b) of the Constitution of India.

ISSUE NO.(7)

• • Under Article 3, Parliament has the explicit power to convert a State into two Union territories by a simple executive order (it does not constitute a constitutional amendment.

• • Judicial review cannot assess the adequacy of the material that prompted a decision taken under Article 3.

A) RELATED LEGAL PROVISIONS

i) ARTICLE (3)

• • Article 3 of the Indian Constitution grants Parliament the authority to form new states or Union Territories and alter existing boundaries or change names of Union Territories or States etc. The proviso accompanying Article 3 mandates that any proposal to alter state boundaries must first be referred to the respective state legislature by the President, allowing them an opportunity to express their views within a designated timeframe.

• • Nevertheless, Parliament retains the final decision-making authority, emphasizing the importance of consultation with affected states before boundary changes are enacted. Proviso of Article 3 requires that if a bill proposes changes to a state’s territory, boundaries, or name, the President must seek the opinion of that state’s legislature before proceeding. This ensures that affected states have a chance to voice their views on such matters.

• • Given the proclamation issued on 19th December 2018, the powers of the ‘State Legislature’ vested with Lok Sabha and Rajya Sabha which was approved by them on 28th December 2018 and 3rd January 2019 respectively. President Ram Nath Kovind referred the Jammu and Kashmir Reorganisation Bill, 2019 to both houses of the Parliament as per Proviso to Article 3 of the Constitution

(ii) ARTICLE (356)

• • Article 355 states that the Union has a responsibility to safeguard each State from external attacks and internal turmoil, ensuring that every State’s governance complies with the Constitution of India. The marginal note to Section 356 provides “Provisions in case of failure of constitutional machinery in State”. Though this has been mentioned in the marginal note and

• • not in the substantive text, Constitutional bench decisions of the Hon’ble apex Court have held that this Article must be interpreted in the light of the marginal note.

• • To invoke Article 356 and issue a Proclamation, the President must first be convinced that a state of affairs has arisen where the governance of a State cannot proceed by the Constitution. This conviction must stem either from a report forwarded by the State’s Governor or through other means. Once these prerequisites are met, the President, through the Proclamation, may opt to assume some or all functions of the State’s government, along with the powers vested in or exercisable by the Governor or any other state authority. Furthermore, the President can decree that the State Legislature’s authority be exercised under the auspices of Parliament.

• • Additionally, the President holds the authority to enact supplementary provisions deemed necessary or expedient to achieve the Proclamation’s objectives, including the partial or complete suspension of constitutional provisions about state bodies or authorities, barring those related to High Courts.

• • Subsequent clauses of Article 356 delineate the terms of such a Proclamation. Each Proclamation must be presented before both Houses of Parliament and, unless sanctioned by a resolution from both Houses, shall lapse within two months.

• • A Nine-Judge Bench of Apex Court in SR Bommai vs Union of India[5] underscored the importance of parliamentary oversight and broadened the judicial scrutiny of the President’s subjective judgment in invoking Article 356, thus placing constraints on presidential powers.

ARTICLE (357):

• • In the realm of Article 357(2), it is elucidated that any legislation promulgated by Parliament, the President, or any duly authorized body, which would have been beyond their jurisdiction but for the Proclamation under Article 356, shall persist even after the Proclamation’s expiration. This legislative authority shall endure unless altered, repealed, or amended by the State legislature or relevant authority.

• • Hon’ble Justice Sanjay Kishan Kaul noted the following in the following case to case in hand:

• • “Article 356 encompasses/vests all shades of legislative/constituent powers in the Parliament. The said powers cannot be limited by Article 357 as the said provision deals only with the powers of the Parliament to ‘make laws’. Article 357 does not deal with ‘powers of the legislatures’ as used in Article 356 (1)(b). There are thus, no implied limitations in the power under Article 356.”

ARTICLE 367:

• • This Article, titled “Interpretation” acts as a guiding light, clarifying various terms and expressions used within the document. It ensures that words have precise meanings, akin to a trusty map guiding through the intricate terrain of legal language. In simpler terms, it helps interpret the Constitution’s language, ensuring everyone is on the same page when it comes to understanding the ‘mother of all laws’.

• • Constitutional Order 272 (issued on 5th August 2019) introduced Clause 4 to Article 367, which altered the term ‘Constituent Assembly’ in the proviso of Article 370(3) to ‘Legislative Assembly’. Paragraph 2 of Constitutional Order 272, which amends Article 370 via Article 367, is beyond the powers granted by Article 370(1)(d). This is because it effectively alters Article 370 without adhering to the mandated procedure for such modifications. An interpretation clause cannot be employed to circumvent the established amendment process.

ARTICLE 370:

• • Recognising the unique circumstances under which the State of Jammu and Kashmir acceded to India Article 306A (re-numbered as Article 370) was introduced in the draft Constitution, moved by former Prime Minister of Jammu and Kashmir (1937-1943), N. Gopalaswamy Ayyangar on 17.10.1949 keeping in view the letter and spirit of Instrument of Accession. Hope was expressed in the Constituent Assembly debates that just like other States, Jammu and Kashmir too would integrate with India. The temporary nature of the provision is apparent from its placement in Part XXI of the Constitution of India. The only way to tweak Article 370 is through an order under Article 370(3), giving the President the green light to turn it off or alter it as needed.

ARTICLE [35(A)]

• • Article 35A is not explicitly mentioned in the bare text of the Indian Constitution because it was introduced through a Presidential Order, the Constitution (Application to Jammu and Kashmir) Order, 1954, (amended 47 times and superseded in 2019) rather than through a formal constitutional amendment. Article 35A of the Indian Constitution was a unique provision that empowered the Jammu and Kashmir state legislature to define “permanent residents” of the state and confer them special rights and privileges. This Article allowed the state to grant exclusive benefits to its residents, such as the ability to own property, secure government jobs, and access educational scholarships. Section 6 of the Jammu and Kashmir Constitution provides for Permanent residents. However, there is no dual citizenship. Permanent residents are citizens of India as was observed in the case in hand and SBI vs Santosh Kumar [6].

•  On August 5, 2019, the President of India issued a Presidential Order (The Constitution (Application to Jammu and Kashmir) Order, 2019) under Article 370(1)(d), which effectively abrogated Article 370 by superseding the earlier Presidential Orders and extending all provisions of the Indian Constitution to Jammu and Kashmir. This was followed by a resolution passed by the Parliament of India recommending the abrogation, and the subsequent issuance of another Presidential Order declaring all clauses of Article 370, except 370(1), inoperative. Hence, the term ‘abrogation’ of Article 370 is used and not ‘repeal’. In essence, the only remaining functional part is the procedural aspect of Article 370(1), which now has limited practical impact given the full application of the Indian Constitution to the former state. On 11th December 2023 five senior- most Judges of the Hon’ble Supreme Court upheld the Union Government’s action to abrogate Article 370.
• • On August 5, 2019, the President of India issued a Presidential Order (The Constitution (Application to Jammu and Kashmir) Order, 2019) under Article 370(1)(d), which effectively abrogated Article 370 by superseding the earlier Presidential Orders and extending all provisions of the Indian Constitution to Jammu and Kashmir.

• • This was followed by a resolution passed by the Parliament of India recommending the abrogation, and the subsequent issuance of another Presidential Order declaring all clauses of Article 370, except 370(1), inoperative. Hence, the term ‘abrogation’ of Article 370 is used and not ‘repeal’. In essence, the only remaining functional part is the procedural aspect of Article 370(1), which now has limited practical impact given the full application of the Indian Constitution to the former state. On 11th December 2023 five senior- most Judges of the Hon’ble Supreme Court upheld the Union Government’s action to abrogate Article 370.

A. RATIO DECIDENDI

ISSUE NO. (1)

• • Article 370 signifies a provisional measure, akin to a temporary bridge spanning the gap between past and present, inviting reflection on the fluidity of governance. Its placement in Part XXI shows that it was meant to be a temporary provision. Its drafting history shows that it was meant to be a temporary measure till the future time when it can be fully integrated with India.

ISSUE NO. (2)

• • Paragraph 2 of Constitutional Order 272 changed Article 370 using Article 367, but it didn’t follow the rules outlined in Article 370(1)(d).

• • However, the exercise of power by the President under Article 370(1)(d) to issue CO 272 was held not to be mala fide.

ISSUE NO. 3

• • The President’s issuance of Paragraph 2 of Constitutional Order 272 under Article 370(1)(d), which extends all Indian Constitution provisions to Jammu and Kashmir, is lawful. Apex Court observed that such an exercise of power is not mala fide merely because all the provisions were applied together without following a piecemeal approach.

ISSUE NO. (4)

• • The President’s decision to end Article 370(3) without needing the Constituent Assembly’s recommendation was important. It shows that the President was gradually integrating the Constitution into Jammu and Kashmir’s laws. Ending Article 370(3) was the final step in this process, making Constitutional Order 273 valid.

• • With this Constitutional Order 272 was held to be partially valid while Constitutional Order 273 was held to be fully valid.

• • After the complete enforcement of the Indian Constitution in Jammu and Kashmir through Constitutional Order 273, the state’s constitution is no longer effective and is deemed obsolete and inoperative.

ISSUE NO. (5)

• • The views of the Legislature of the State under the first proviso to Article 3 are recommendatory. Thus, Parliament’s exercise of power under the first proviso to Article 3 under the Proclamation was valid and not mala fide.

ISSUE NO. (6)

• • After the President’s proclamation under Article 356, his actions are open to scrutiny by the judiciary. The President’s actions must align reasonably with the purpose of the proclamation. If someone believes the President’s actions are improper, they must show evidence of wrongdoing. If wrongdoing is evident, the burden falls on the government to justify its actions. Parliament’s authority under Article 356(1)(b) shouldn’t be restricted only to law-making.

ISSUE NO. (7)

• • The court observed that it was not inclined towards determining whether dividing Jammu and Kashmir into two Union Territories is permitted under Article 3 or not. Nevertheless, it endorsed the decision to establish the Union Territory of Ladakh, as Article 3(a) combined with an explanation that allows for creating a Union Territory by separating the territory from a state.

• • The court also directed for restoration of the Statehood at the earliest and directed the election Commission to conduct elections to the legislative assembly of the State by 30th September 2024.

ISSUE NO. (8)

• • During the valid operation of the President’s Rule, (as determined by the Court to be valid) Parliament performed the functions of the State Legislature. Thus, it wasn’t possible to seek the State Legislature’s views. Referring to the Manohar Lal case [7], it’s noted that Justice H.R. Khanna of the Delhi High Court stated that Parliament could exercise the State Legislature’s powers under Article 3 when Article 356 was in effect, as seen in the recognition of Punjab in 1956. In the absence of a functioning State Legislature, the requirement to consult their views was waived.

B. OBITER DICTA

• • Hon’ble Justice Sanjay Kishan Kaul (a Kashmiri Pandit himself) dedicated a special section in his judgement titled an ‘epilogue’ in which he observed that once during his journey homeward across the years, he reminisced that Kashmiris have witnessed the gradual unravelling of the social tapestry, keenly aware of the deep-seated wounds inflicted by intergenerational trauma upon a society which was already fragmented. Their heart aches for the collective suffering endured by the people of the region, compelling Hon’ble Justice to pen this poignant Epilogue in the judgment. He wrote,

• • The first step in healing the wounds according to him is knowing the ‘truth about the human rights violations against peoples of the region.

• • Citing the example of South Africa, Hon’ble Justice recommended setting up a ‘truth and reconciliation commission’.

• • Transitional justice, which involves addressing past injustices during periods of political transition, is part of transformative constitutionalism, which aims to fundamentally change and improve legal and political system. It also highlights that globally, constitutional principles have expanded to hold not only governments but also other entities accountable for human rights abuses.

• • Hon’ble Supreme Court also reiterate the words of former Prime Minster Shri Atal Bihari Vajpayee “Insaniyat, Jamhuriyat, Kashmiriyat (i.e., Insaniyat: Humanism; Jamhuriyat: Democracy; Kashmiriyat: Inclusive culture of Kashmir).

• • Apex Court even acknowledged the atrocities committed on the people of Kashmir as “ A proxy war on the territory of India with active support from across the border.” Which even changed the cultural ethos of Kashmir. It even observed that despite three decades having passed, there is little turnback on the plight of Kashmiri Pandits.

G) CONCLUSION & COMMENTS

• • The combined effect of the legislative intent behind the introduction of Article 370, as well as bare perusal and other factors, point to the fact that Article 370 is a temporary provision. The objective of Article 370 was a ‘gradual alignment’ of Jammu Kashmir with the rest of India.

• • Even the Preamble of the Constitution of Jammu and Kashmir provided that it is an integral part of India. Article 370 of the Constitution read together with Article 1 leaves no doubt that the integration of Jammu and Kashmir as a part of the nation, which was a Union of States, was complete. Any interpretation of Article 370 cannot postulate that the integration of Jammu and Kashmir with India was temporary.

• • With the 2019 reorganisation Act, about 106 Central laws and 7 State laws have now been made applicable to Jammu-Kashmir and Ladakh.

• • With the repeal of Article 370, India has turned the page on the Kashmir issue, closing the book on decades of strife and uncertainty, and opening a new chapter of prosperity and progress. After the removal of Article 370, it is imperative to adopt a multifaceted approach to address the complex challenges and opportunities that arise. Economic development initiatives must be prioritized to stimulate growth, create employment opportunities, and uplift living standards.

• • Additionally, a focus on security measures, transparency, accountability in governance, respect for human rights, infrastructure development, and long-term strategic planning are essential components of a comprehensive strategy for the region’s progress and prosperity in the post-Article 370 eras. At this juncture, it becomes pertinent to mention that Shyama Prasad Mukherjee made significant sacrifices in his efforts to advocate for the full integration of Jammu and Kashmir into India and to oppose its special status under Article 370 of the Indian Constitution.

• • He stood firmly against the Indian National Congress’s move to grant Kashmir special status, which included its flag, Prime Minister, and restricted entry for even the President of India without the Kashmir Prime Minister’s permission. Expressing his dissent, he famously remarked, “Ek Desh Mein” Do Vidhan”, “Do Pradhan” and “Do Nishan” Nahi Challenge” (“A single nation cannot accommodate two constitutions, two Prime Ministers, and two national emblems.”)

• • Kashmir, nestled amidst the majestic Himalayas, stands as a memorable symbol of India’s unity in diversity. Through its rich tapestry of culture, history, and tradition, Kashmir has woven itself seamlessly into the fabric of the Indian nation. From the lush valleys of Srinagar to the snow-capped peaks of Gulmarg, every corner of this land bears witness to its integral connection with India.

• • The presence of Article 370 and Article 35A was the biggest reason why there was no psychological integration of the erstwhile State of Jammu and Kashmir with India because of this people were left with no hope for support from India which in turn intensified the conviction of the separatists. Reading down of Article 370 has given the same rights and protections to the residents of Jammu and Kashmir as any other citizen of India is entitled to by application of Indian laws to this area. Abrogation of Article 370 has provided a fertile land where conditions can be created to resettle the indigenous Kashmiri Pandits in their homeland fully.

• • It is shocking to note that between 1989 and 1991 (mass genocide and exodus) more than 3,50,000 Kashmiri Pandits were displaced and had to find refuge in other parts of their own Country. And the migration has not yet stopped despite the abrogation! Targeted killings of Kashmiri Pandits have become so common in the news now that it has numbed our sense of shock.

• • Recently, on 9th June 2024 a bus carrying Hindu pilgrims to Vaishno Devi, en route to Shivkhori Temple, Reasi District came under a brutal attack by terrorists and 9 people lost their lives while 33 were severely injured. The need of the hour therefore is that the Hon’ble Supreme Court must open the old cases “old cases pertaining” to the Genocide and exile of Kashmiri Pandits about three decades ago. The Government should take up the task of rehabilitating the Kashmiri Pandits with full sincerity in the valley and ensure their future safety. Without these basic measures on the ground, even abrogation of Article 370 would serve no practical purpose! Justice should not only be done but also seen to be done. Justice demands that the ultimate objective behind Abrogation is fully achieved- JUSTICE FOR THE NATIVES. Kashmir was, Kashmir is and Kashmir will forever remain to be an integral part of India.

Nuisance meanings | kinds of Nuisances (Tort)

H) REFERENCES

A. Important Cases Referred

 

• Writ Petition no. 1099 OF 2019
• Sampath Prakash v. State of Jammu and Kashmir (1969) 2 SCR 365
• Prem Nath Kaul vs The State of Jammu & Kashmir (1952)
• SR Bommai vs Union of India (1994)
• State of Rajasthan v. Union of India (1977)

B. Important Statutes Referred

i. Constitution of India,1950

ii. Constitution of Jammu and Kashmir,1956

iii. Constitutional Orders 272 and 27 (2019)

iv. Jammu and Kashmir Reorganisation Act, 2019

                    

                                         Author:-  NISHTHA

                                                          LL.M.

                                       University :-  PANJAB UNIVERSITY 

                                                               SWAMI SARVANAND GIRI REGIONAL CENTRE, HOSHIARPUR