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extension report

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Chotti Queen
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Extension Activity

MANOHAR LAL SHARMA & Ors.


V
UNION OF INDIA WP(C) 1013/2019

Date of Visit: 24th August 2023


N.D.O.H: 28th August 2023
Coram: Constitution Bench comprising Chief Justice of India DY Chandrachud, Justice SK
Kaul, Justice Sanjiv Khanna, Justice BR Gavai and Justice Surya Kant

BRIEF FACTS OF THE CASE Article 370 was incorporated into the Constitution on
October 27, 1949, as part of Part XXI, "Temporary, Transitional, and Special Provisions." It
was initially supposed to be a transitional clause that would only be in place while the State
of J&K's constitution was being created and adopted. But on January 25, 1957, the State's
constituent assembly disbanded itself without recommending either the repeal or modification
of Article 370, therefore it's unclear how the clause stands now. Article 370(3) barred the
Indian parliament from changing the law without the J&K Constituent Assembly's consent.
The State's Constituent Assembly was, however, disbanded in 1957, as was already
mentioned. Therefore, the Constitution (Application to Jammu & Kashmir) Order, 2019 was
published on August 5, 2019, which began the two-step process of revoking J&K's special
status. The State having been under Presidential Rule since December 2018 made it easier to
put these measures into action. First, the CO 272 order, also known as the Constitution
(Application to Jammu & Kashmir) Order, 2019, was passed. The Constitution (Application
to Jammu and Kashmir) Order, 1954 was replaced by this order, which stated that J&K
would be subject to all the terms of the Indian Constitution. Additionally, it changed Article
367 of the Constitution. The CO 272 ruling added a clause to Article 367 since Article 370
could only be changed on the advice of the J&K Constituent Assembly.
The Central Government then took the next action. By a vote of 351 to 72, the Lok Sabha
approved a Statutory Resolution that called for the repeal of Article 370, and the Rajya Sabha
also approved it. Based on the legislative resolution approved by the Parliament, President
Ram Nath Kovind issued a notification (CO 273) on August 6, 2019, announcing that all of
Article 370's terms will become ineffective as of that date. This effectively eliminated Jammu
& Kashmir's unique status. Invoking Article 32 of the Constitution, Advocate ML Sharma
filed a Supreme Court petition on the same day as the President's notification, launching a
legal challenge to the Constitution (Application to Jammu & Kashmir) Order, 2019. Actor
Tehseen Poonawalla and Jammu and Kashmir-based attorney Advocate Shakir Shabir later
added petitions opposing the same ruling to their respective filings. In the days that followed,
a flurry of petitions protesting the repeal of Article 370 came from a variety of sources,
including lawyers, National Conference leaders, ex-bureaucrats, military people, and
politicians, among others. These petitions expressed disapproval of a number of J&K-related
issues, including restrictions on free speech, the imprisonment of political figures, challenges
to the valley's lockdown, internet outages, and more
The petitioner's legal representatives emphasized the special nature of J&K's relationship
with India, which was reflected in the Indian constitutional framework. In this regard, the
petitioners gave the court a history of J&K's admission to India and the subsequent creation
of the J&K Constitution. The Maharaja of J&K was not required to cede his internal
sovereignty to the Dominion of India upon acceding because he never signed a merger
agreement with India, despite the fact that the idea of sovereignty has two components—
internal and external—to it. Therefore, according to the Instrument of Accession (IoA), the
Union had the authority to establish legislation relating to foreign policy, communication, and
defence, but the Maharaja maintained internal sovereignty over J&K.

OBSERVATION FOR THAT DAY – 24th AUGUST 2023


The submissions made by the petitioners completed on 23rd August 2023, and on the
following day, i.e., the day of visit (24th August 2023) the Union commenced with its
submissions. The brief od the arguments put forth by the petitioners was given under the
following subheads:
• Article 370 Was No Longer A 'Temporary' Provision Senior Advocate Sibal claimed that
Article 370 was referred to as a "temporary" provision simply because the Constituent
Assembly of J&K did not exist when the Constitution of India entered into force. The
Constituent Assembly of J&K was anticipated by the Constitution's drafters, and it was
believed that this Assembly would have the power to decide the future course of Article 370,
he claimed. The Constituent Assembly established the Constitution for the State, existed from
1951 to 1957, and subsequently ceased to exist without advocating the removal of Article
370, hence the Article was permanently incorporated into the Constitution
• Permanent Residents Must Be Protected According to Senior Advocate Zaffar Shah, the
region's history cemented the notion of protecting people who resided in the State of J&K as
long-term residents. Shah said that the protection's history can be traced back to a 1927
announcement that gave permanent residents protection. Due to the uproar this produced, a
notification was made in 1927 that only allowed permanent residents to be appointed. He
insisted that doing so was necessary to preserve the area.

The Union presented its arguments by stating and replying to the contentions of the
petitioners regarding invalidity of Presidential Rule in J&K. The Union stated that since there
was no legislative assembly in J&K since 1957, therefore Presidential Rule was enforced.
The Union further stated that the misuse of Article 356 was impermissible. In reference to
this, it was stated that a constituent assembly was an unrestricted political entity created
specifically to draught a Constitution. A legislative assembly, on the other hand, was chosen
by the general populace and was rigidly limited by the Constitution. As a result, under the
terms of the current constitution, the Indian parliament could not transform into a Constituent
Assembly.

OPINION AS THE WRITER/OBSERVER


In my opinion, the recent pleas challenging the abrogation of Article 370 should not have
been entertained and the abrogation so carried out back in 2019, ought to be appropriate. The
reason or explanation for the aforesaid point is that J&K forms a crucial part of India’s
Foreign Policies as well as External Relations, Furthermore, a special status to J&K invited
large amounts of terrorist activities within the nation, thereby, hampering the internal peace.
The special status given to J&K in 1949 was essential during that time as part of foreign
policies and diplomatic ties of the newly independent India, but holds no specific ground as
such.
The status of J&K is highly crucial for the neighboring countries of India, due to the
increasing demand and greed for their respective political establishments in the said state.
The break up of J&K from India shall only result in increased cross border disputes as well as
terrorist activities. The special status given to J&K in 1949 was essential during that time as
part of foreign policies and diplomatic ties of the newly independent India.
I also hold the opinion that the abrogation of Article 370 was not unconstitutional in any
manner as had been argued by the petitioners

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