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A political move of great constitutional significance recently saw the light of day after years of deliberations and discussions. Article 370, which was until recently, a component of Part XXI of the Constitution of India, stands de facto removed. Apart from taking public discourse and the media by storm, this move also predictably saw a slew of petitions being filed in the Hon’ble Supreme Court of India. These petitions broadly encompass three kinds of challenges – challenges to the constitutional validity of the method adopted to abrogate Art 370, recasting the State of Jammu and Kashmir (J&K) into two Union Territories of Jammu & Kashmir and Ladakh and lastly, habeas corpus petitions challenging the detentions of certain persons as well as temporary restrictions on communications imposed in the region. The discussion in this article will be restricted only to the first two challenges as the third would require a very different analysis.
This article will proceed to expound the issue in five parts:
Part I will provide a historical perspective of the manner in which the provision of Art. 370 came to be inducted in the Indian Constitution as the same has wide ramifications on its intent, its content and the intended method, or lack thereof, of its removal.
Part II will discuss the addition of Article 35A, a provision that was not formally a part of the Indian Constitution, but which was introduced using the powers provided in, and under the protective umbrella of Article 370, and is therefore of great significance to this discussion.
Part III will examine the impact that the above-mentioned provisions i.e. Article 370 and Article 35A, had on the human rights and fundamental rights of people in the region and the effect on the special status carved out for the State of Jammu and Kashmir, as it then was.
Part IV will analyse the dilution of the provision of Art 370 over the years and detail the challenges already decided upon by the Supreme Court while dealing with the same.
Part V will explain the various recent steps taken by the Indian Parliament to decommission Article 370 and why the author considers the move to be constitutionally valid. This Part will also discuss how the said steps are in complete consonance with the various decisions rendered by the Hon’ble Supreme Court of India regarding this issue.