“It wasn’t a decision made by God, but by those in Parliament. The same Parliament has the power to restore it,” said Mr. Abdullah. “If a five-judge bench upheld the abrogation, a seven-judge bench can support the restoration of Article 370 in the future.”Jammu Kashmir National Conference (JKNC) Vice President Omar Abdullah stated
Jammu & Kashmir: In response to Union Home Minister Amit Shah’s stance on the restoration of Article 370, Jammu Kashmir National Conference (JKNC) Vice President Omar Abdullah stated on September 17, 2024, that the abrogation of Article 370 on August 5, 2019, was not a divine act.
“It wasn’t a decision made by God, but by those in Parliament. The same Parliament has the power to restore it,” said Mr. Abdullah. “If a five-judge bench upheld the abrogation, a seven-judge bench can support the restoration of Article 370 in the future.”
The NC’s manifesto prioritizes the restoration of Article 370.
At a rally in Kishtwar on September 16, 2024, Union Home Minister Amit Shah asserted that “there is no place for Article 370 in the Indian Constitution,” calling it a “closed chapter in India’s history” that no force can now revive.
In contrast, Omar Abdullah criticized Shah for failing to control militancy in Jammu, stating, “Terrorism is increasing in Jammu. The Home Minister should focus on that.
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The Centre has ruled J&K directly for the past ten years, so who is accountable for the situation in Jammu?”
Abrogation of Article 370
Article 370 was incorporated into the Indian Constitution in 1949 after J&K’s accession to India in 1947. The state had its own constitution and autonomy over internal matters except in defense, communications, and foreign affairs
On December 11, 2023, the five senior-most judges of the Supreme Court upheld the Union government’s decision to revoke Article 370, which had provided special status to Jammu and Kashmir. The Court also declined to rule on the constitutionality of reorganizing J&K into two Union Territories: Jammu and Kashmir, and Ladakh.
Chief Justice D.Y. Chandrachud, along with Justices B.R. Gavai and Surya Kant, authored 352 pages of the 476-page judgment. Justice S.K. Kaul contributed 121 pages, while Justice Sanjiv Khanna wrote a three-page concurring opinion.
The abrogation was carried out through a Presidential Order, along with a parliamentary resolution that passed the Jammu and Kashmir Reorganisation Act, 2019, bifurcating the state into two Union Territories – Jammu & Kashmir and Ladakh.
CJI Chandrachud placed significant emphasis on a proclamation issued by Yuvraj Karan Singh on November 25, 1949, the day before India’s Constitution was adopted. The proclamation declared that the Indian Constitution would govern the relationship between Jammu and Kashmir (J&K) and India.
The Chief Justice pointed out that this proclamation effectively nullified two clauses of the Instrument of Accession (IoA). Paragraph 7 of the IoA stated that the IoA did not imply acceptance of “any future Constitution of India,” and Paragraph 8 maintained the Maharaja’s sovereignty.
However, Yuvraj Karan Singh’s proclamation asserted that “the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State.”
CJI Chandrachud further argued that evidence within Article 370 and the J&K Constitution shows that no merger agreement was necessary for Kashmir to relinquish its sovereignty. Article 370(1) applied Article 1 of the Indian Constitution, listing J&K as a Part III State without modifications.
Section 3 of the J&K Constitution explicitly declares, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India.”
Section 147 prohibits any amendments to Section 3, reinforcing the provision’s permanence.
Consequently, the Chief Justice concluded that the Constitution of India “became the supreme governing document of the land.” Moreover, the Preamble of the J&K Constitution shows a “clear absence of any reference to sovereignty.”
Article 356(1)(a) states that the President may declare that the “powers of the Legislature of the State” shall be exercised by or under the authority of Parliament. Petitioners had suggested that there is a difference between “law-making and non-law-making powers” of the state legislature, arguing that only legislative and not constituent power is transferred to Parliament under President’s Rule.
CJI D.Y. Chandrachud held that no such distinction exists under Article 356. He noted that interpreting the phrase “powers of the legislature” to allow Parliament to exercise all constitutional powers of the Legislative Assembly would limit the power of the state. “However,” he continued, “the Constitution recognises such reduction of federal power when the Proclamation under Article 356 is in force.”
Article 370 had a provision (clause 3) that allowed the President of India to declare the Article inoperative, provided it had the recommendation of the J&K Constituent Assembly. The state’s Constituent Assembly had dissolved in 1957, leaving a legal debate over this clause.
In 2019, the government argued that the powers of the state legislative assembly were vested in the Governor of J&K after the assembly was dissolved and that the abrogation was legal under these conditions.
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