Was the decision taken by the Centre on August 5, 2019, to abrogate Article 370 of the Constitution, granted a special status on the erstwhile state of Jammu and Kashmir, constitutionally valid? The Supreme Court is set to pronounce its verdict on Monday, December 11, on a batch of petitions challenging the abrogation of the provisions of Article 370.

A five-judge Constitution bench of the Supreme Court headed by Chief Justice DY Chandrachud would deliver the verdict. The other members of the bench are Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai and Surya Kant. The apex court reserved its verdict on the matter on September 5 after a 16-day hearing.

The apex court’s judgment is likely to impact several major decisions taken by the Centre in the past four years.

Special status of Jammu and Kashmir under Article 370

Article 370 of the Constitution gave special status to Jammu and Kashmir in the Indian Union and restricted the Centre’s legislative powers with respect to the state. It gave the state legislature to make its own laws in all matters except for finance, defence, foreign affairs and communications.

Article 35A

Article 35A under Article 370 of the Constitution was introduced through a presidential order in 1954 to continue the old provisions of the territory regulations. The article permitted the Jammu and Kashmir state legislature to define permanent residents of the region. It forbade outsiders from permanently settling, buying land, holding local government jobs or winning education scholarships in the region.

The article, referred to as the Permanent Residents Law, also barred female residents of Jammu and Kashmir from property rights in the event that they married a person from outside the erstwhile state.

Re-organisation of Jammu and Kashmir

With the abrogation of Article 370, the Centre had also reorganised the erstwhile state of Jammu and Kashmir into two Union Territories — Ladakh and Jammu and Kashmir. Ladakh was carved out as a Union Territory without a legislature, while Jammu and Kashmir had a legislative body. Both the UTs are being administered by the Centre-appointed lieutenant governors since no assembly elections have taken place in Jammu and Kashmir since August 5, 2019.

Delimitation of parliamentary and legislative constituencies

In May 2022, the Jammu and Kashmir Delimitation Commission notified the new boundaries, names and number of assembly constituencies in Jammu and Kashmir, paving the way for the first-ever assembly elections in the Union Territory.

While not mentioned in its order, the Delimitation Commission said in a statement that it had recommended to the Centre to nominate at least two “Kashmiri migrants” to the Legislature who would have the same powers as nominated members of the Puducherry assembly and to “consider” giving “some representation” to persons displaced from Pakistan-occupied J&K. A source said this was a “proposal” that the Centre would take a call on.

In February 2023, the Supreme Court dismissed a challenge to the constitution of the Jammu and Kashmir Delimitation Commission to readjust constituencies in the new Union Territory.

“Articles 2 and 3 of the Constitution enable the Parliament to create new States and Union territories. Accordingly, the two new Union territories have been created. The J&K Reorganisation Act which created the two new Union territories assigns the role of readjustment of constituencies to the Delimitation Commission under the Delimitation Act, 2002… a law made under Article 3 can always provide for readjustment of the Constituencies in the newly constituted States or Union territories through the Delimitation Commission. Hence, we hold that there is no illegality associated with the establishment of the Delimitation Commission under the order of March 6, 2020,” a bench of justices Sanjay Kishan Kaul and AS Oka had held.

Voting rights to West Pakistan Refugees (WPRs)

Jammu and Kashmir’s elections have also been opened up for “outsiders” – those who were not permanent residents of Jammu and Kashmir before August 5, 2019, – as any Indian citizen can now become eligible to vote or contest in the assembly, panchayat and municipal elections by fulfilling the condition of being an “ordinarily resident” of the UT. With doors being opened for non-natives, refugees from West Pakistan, who have been residing in J&K for 70 years were eligible to vote in the district development council elections and by-polls for panchayats and urban local bodies.

According to the ministry of home affairs, there are 5,746 families of West Pakistani Refugees in the UT, most of whom live in the three districts of Kathua, Samba and Jammu. However, community leaders claim the number of families has gone up to 20,000.