Some myths about J&K State related issues cultivated over years had also been dismantled set aside by Constitution Bench Judgement of Dec 11, 2023

• 11 Dec 2023 Constitution Bench Judgement IN RE: Article 370 of the Constitution: Validity of C.O 272 & C.O 273 of Aug 2019: Act 34 of 2019
• Grant of Statehood to UT of J&K or UT of Ladakh is for Parliament to Decide unless SC holds invalid the Use of Art-3 for reducing a State to a UT

DAYA SAGAR
After issue of Constitution Order {The Constitution (Application to Jammu and Kashmir) Order, 2019 } 272 CO of 05-08-2019 ( of President of India as issued in exercise of the powers conferred by clause (1) of article 370 of the Constitution, with the concurrence of the Government of State of Jammu and Kashmir) as published in the Gazette of India vide Notification G.S.R .551(E) of date August 5, 2019 by Ministry of Law & Justice that superseded the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time} ; Constitution Order ( CO) 273 of date September 6, 2019 { Declaration Under Article 370(3) of the Constitution made by President of India in exercise of the powers conferred by clause (3) of Article 370 read with clause (1) of Article 370 of the Constitution of India, on the recommendation of Parliament }as published in the Gazette of India vide Notification G.S.R .562(E) of date August 6, 2019 by Ministry of Law & Justice } ; and passage of The Jammu and Kashmir Reorganisation Act, 2019 NO. 34 of 2019 ,an Act to provide for the reorganisation of the existing State of Jammu and Kashmir in two UTs { UT of J&K and UT of Ladakh and for matters connected therewith or incidental thereto ( Passed by Lok Sabha on 6th Aug 2019 & by Rajay Sabha on 5th Aug 2019 that received assent of President of India on 9th August, 2019 and became effective wef October 31, 2029 } a number ( 22) of petitions were filed in Supreme Court of India questioning the constitutional validities. All the petitions were clubbed as original Writ / Appellate Jurisdiction Writ Petition (Civil) No. 1099 of 2019 in RE: Article 370 of the Constitution. A five Judge Constitution Bench ( Justice Dr Dhananjaya Y Chandrachud CJI, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Bhushan R Gavai and Justice Surya Kant ) passed the judgement on December 11, 2023.
To be brief in common man language(i) with the C.O 272 among other things and in particular reference to the State of J&K a ‘new’ Article by the name Art-35A which was added in Constitution of India , not by a regular Constitution Amendment using Art-368 but through Constitution (Application to Jammu and Kashmir) Order 1954 of May 14, 1954, was deleted by using the same procedure; and with CO 273 of August 6, 2019 using the provisions contained in Art-370 the Article 370 was amended ( not abrogated ) so as to in particular make Art-152 applicable to J&K State while making reference to J&K state in reference to articles like 146,148,149 as regards subjects in the State list , Union list and Concurrent list in the same way as for most of the other Indian states ( it was just a procedural change since J&K state is already a State as defined in Art-1 of Constitution of India.
It is not out of place to mention here that the affairs and issues related to Indian State of J&K have been a victim of the political ambitions of some leaders as well as some political parties who have been using the environment & circumstances that prevailed at the time of accession of the princely State of J&K to India in Oct 1947and have been propagating some explanations / theories to support their political claims after independence related to accession or accuse other political opponents / rival referring to subjects of accession / partition of India some of which were extravagant / misrepresentations but had not been refuted even by some opponents who instead indirectly accepted existence of some claims though also at the same time advocated for removal of the features cultivated by their opponents and also held ‘some other opponent’ as responsible for providing grounds for such claims to some for making such claims. The result has been that even some myths had taken grounds worth ‘truth’ for some not only in the local arenas but also at the all India level including even some non-political persons / scholars / commentators. Like some saying that Art- 370 is a bridge between India & State which the Article was not , Article-370 gave special status to J&K State in Constitution of India where as it was not so ( so strangely even after March 11, 2015 in reply to Rajay Sabha Question 138 ( (a) whether it is a fact that through Article 370, the Constitution gives special status to Jammu and Kashmir ) GOI in written reply informed the Parliament that Art-370 did not give special status to J&K in Constitution {(a): In the Constitution of India, there is no mention of ‘Special Status to Jammu and Kashmir’. Article 370 provides for ‘Temporary provisions with respect to the State of Jammu and Kashmir’.}but still many leaders kept on saying that J&K has / had special status and many are still found saying that special status of J&K was removed in August 2019), many have been saying that J&K State has/had a separate constitution than COI ( J&K had own constitution) where as it was not so which could be well read by any one going through the Preamble of COI and preamble J&K Constitution but that was not done , some even said that J&K has her own Flag like the Indian National Flag ‘noone’ who materially mattered refuted that where as it was nowhere like that which could well be read from the 1952 Delhi Agreement which very clearly said that the State flag is to be symbol of freedom struggle and it will be no where rival of National flag which will have same status in J&K as in other Indian states, some said J&K had not merged with India where as other states had also signed additionally some merger document and some observed 26th Oct as VILAY Divas, whereas States like J&K had to only accede to Dominion of India in 1947 and merger was referred wrt some smaller princely states that were required to be made part of some other bigger state or so for purposes of local governance , some even have been saying that since it was with the consent of the “people of Kashmir Valley” that the princely state of J&K could accede to India after some special treatment promises were made to the people of J&K & “Art-370/ Separate Flag/ separate constitution” were the shadows of those promises where as it was exclusive mandate in terms of Indian Independent Act 1947 with the Prince of the State to accede or not accede with any of the Dominion and like . Such like myths had taken ground even outside J&K and many people who mattered did not dismiss such myths but in a way they acknowledged such myths ( some even supporting such claims and some who opposed such claims also acknowledged their existence when they said they would support removal of such features).Even after 2019 some leaders / commentators holding responsible positions could be found saying that Art-370 has been abrogated ( where as it has been amended ) and after ‘abrogation’ of Art 370 special status of J&K has been taken away ( where as Art-370 never gave constitutionally special status to J&K ) which very clearly demonstrates how some uncontested otherwise claims made by some in reference to Oct 1947 accession of J&K to Indian Dominion had become believable truth ( myths) for even many learned people.
The constitution bench has through the judgement delivered on December 11, 2023 declared the actions of the President / Parliament as regards issue of Notification CO 272 of August 5, 2019 and Declaration C.O 273 of August 6, 2019 constitutionally valid and within the provisions of COI as regards the delegations & procedures. As regards the Jammu and Kashmir Reorganisation Act, 2019 No. 34 of 2019 and use of Art-3 of the COI for the Act 34 of 2019 the SC had kept the subject on hold although had also made some observations regarding the Reorganisation of J&K state into UT of J&K & UT of Ladakh and also issued some directions regarding holding elections to Legislative Assembly of UT of J&K by 30th September 2024.
For the reasons of space and time all things cannot be detailed here and some references to the Jammu and Kashmir Reorganisation Act, 2019 No. 34 of 2019 ,an Act that provided for the reorganisation of the existing State of Jammu and Kashmir in two UTs , UT of J&K and UT of Ladakh, will be taken first which also becomes an item of news every next day as regards restoration of Statehood to J&K.
To be continued
(The writer is Sr Journalist & analyst of J&K affairs [email protected] 09419796096)