Article 370: SC Upholds Scrapping Special Status Of Jammu And Kashmir

NEW DELHI: A five-judge Constitution Bench headed by Chief Justice of India (CJI) Y V Chandrachud on Monday rejected arguments by petitioners that no irreversible decisions could be taken by the Centre during President’s Rule in Jammu and Kashmir.

A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant delivered the judgment about half an hour later than the scheduled time. The bench pronounced its verdict on pleas challenging the Centre’s decision to abrogate (Repeal) of provision of Article 370 of the Constitution which granted special status to J&K.

Unanimous verdict by Supreme Court on Article 370

“Every decision taken by the Centre on behalf of the state during Presidential Rule can’t be challenged,” CJI Chandrachud said while reading out his judgement. The CJI also held that Article 370 is a temporary provision.

The proceedings and pronouncement of the judgment by the Constitution bench were live-streamed from the Supreme Chamber No: 1 through the Supreme Court channel and watched by the people, who could not be present in the court. The delay, some reports suggested, in the announcement of the verdict was due to some technical glitch in the live-streaming equipment.

Article 370, which granted special status to Jammu and Kashmir, was abrogated in 2019 and the state was divided and demoted into two Union Territories – Jammu and Kashmir and Ladakh.

President’s order to scrap Jammu and Kashmir’s special status ‘valid’

Supreme Court upheld the validity of the Union Government’s 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution.

The court held that the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian Constitution to the State of J&K. It was held that Article 370 was a temporary provision.

SC directs restoration of Statehood to J&K

The court directed for the Union to restore the statehood of J&K as soon as possible but left the issue of the reorginazation of J&K into Union Territory (UT) open. Further, the reorganisation of Ladakh as UT was upheld.

“The power of the President under Article 370(3) to issue a notification that Article 370 ceases to exist subsists even after the dissolution of the J&K Constituent Assembly,” the top judge said, adding that the recommendation of the Constituent Assembly was not binding on the President. He added that the J&K Constituent Assembly was intended to be a temporary body.

“When the constituent assembly ceased to exist, the special condition for which Article 370 was introduced ceased to exist but the situation in the state remained and thus the article continued,” CJI Chandrachud elaborated.

The Apex Court had reserved the judgment in the matter on September 5, 2023 after hearing it for sixteen long days. It may be recalled that the petitioners in the matter had also challenged the J&K Reorganization Act which bifurcated the State into Union Territories of J&K and Ladakh.

There were three judgements in the matter- one by CJI DY Chandrachud for himself and for Justices Gavai and Surya Kant. The second was a concurring opinion authored by Justice SK Kaul. Justice Sanjiv Khanna concurred with both the judgements.

Presidential proclamations announcing President’s Rule not challenged

The court held that it need not adjudicate on the validity of the presidential proclamations announcing President’s Rule in the State since petitioners did not challenge the same. In any case, the court found that no material relief could be given as the President’s Rule was withdrawn in October 2019.

The court held that there are limitations on power of the Union and States when proclamation of presidential rule was in force. It stated that the scope of the power of Union depends on the circumstances. The court added that the exercise of power under Article 356 must have a reasonable nexus with the object of the proclamation.

Further, the court stated that there were innumerable decisions taken by Union on behalf of States. Thus, it added, “Every decision taken by Union on behalf of State during Presidential rule not open to challenge…this will lead to the administration of state to a standstill…“

The court rejected the argument of petitioners that Union cannot take actions of irreversible consequences in the State during Presidential rule. Further, the argument of the petitioners that the Parliament can only make the law-making powers of the State when the Presidential rule was in force was also not accepted.

However, the court held that the exercise of Presidents’ power after the proclamation are subject to judicial review. It was held that the power of Parliament under Article 356(1) to exercise powers on behalf of State assembly was not restricted to law making powers.

The court stated that the Proclamation of Maharaja stated that the Constitution of India will supersede. With this, the court added that the paragraph of Instrument of Accession ceased to exist. The court stated that the constitutional set up did not indicate that Jammu and Kashmir retained sovereignty.

The CJI, in his judgement, stated that there was a clear absence in the Constitution of Jammu and Kashmir to the reference of sovereignty and that the State of Jammu and Kashmir became an integral part of India is evident from Articles 1 and 370 of the Constitution of India.

The CJI stated– “All States in the country have legislative and executive power, albeit to differing degrees. Article 371A to 371J are examples of special arrangements for different states. This is an example of asymmetric federalism.” It added that Article 370 was a feature of asymmetric federalism and not sovereignty.

Article 370 a ‘temporary provision’, President had power to scrap it

The CJI, in his judgement stated that Article 370 was held to be a temporary provision on a historical reading, as per which it was a transitory and temporary provision. The court added that the power of the President under Article 370(3) to issue a notification that Article 370 ceases to exist subsists even after the dissolution of the J&K Constituent Assembly.

As per the judgement, the recommendation of the Constituent Assembly was not binding on the President. It stated that the J&K Constituent Assembly was intended to be a temporary body. When the constituent assembly ceased to exist, the special condition for which 370 was introduced ceased to exist but the situation in the state remained and thus the article continued.

The court found that holding that the power under Article 370(3) ceases to exist after the dissolution of the J&K Constituent Assembly would lead to the freezing of the process of integration. The court held that the power under Article 370(3) did not cease after the J&K Constituent assembly ceased to exist.

The CJI stated– “This court cannot sit in appeal over the decision of the President of India on whether the special circumstances under Article 370 exist…History shows gradual process of constitutional integration was not going on…It was not as if after 70 years Constitution of India was applied in one go. It was a culmination of the integration process.“

Accordingly, it was held that all provisions of the Constitution of India could be applied to J&K using Article 370(1)(d) in one go.

In furtherance of the same, it was held that the exercise of Presidential Power was valid. The court held that principle of consultation and collaboration was not required to be followed for the exercise of Presidential power and the concurrence of the State government was not required to apply all provisions of the Constitution using Article 370(1)(d). Thus, the President taking the concurrence of the Union Government was not malafide. The court held that the views of the State legislature under Article 3 proviso were recommendatory.

On the other question, of whether the Parliament can convert a State into a Union Territory, the CJI said it would be left open.

Jammu and Kashmir doesn’t hold internal sovereignty

In his concluding points, the CJI stated that the state of J&K does not retain any element of sovereignty. “It does not have internal sovereignty. Article 370 is a feature of asymmetric federalism and not sovereignty.”

The top judge directed the Election Commission of India to hold elections as soon as possible.

“We direct that steps shall be taken by the Election Commission of India to conduct elections to the J&K assembly by September 30. Restoration of statehood shall take place as soon as possible.”

CJI Chandrachud at the outset said that there are three judgements by the five-judge bench on the issue.

“There are three judgments. One by CJI for himself for Justice Gavai and Surya Kant. There is a concurring opinion by Justice Kaul. Justice Sanjiv Khanna has concurred with both,” the CJI said.

Justice SK Kaul, in his judgement, stated – “Purpose of Article 370 was to slowly bring Jammu and Kashmir on par with the other States of India. Requirement of recommendation of J&K Constituent Assembly cannot be read in a manner making the larger intention redundant.”

The majority judgment authored by the CJI stated that while the change sought to be made by CO 272 appeared to be to Article 367 at the first plush, it effectively changed Article 370. The court found these changes to be substantive. The court stated that the interpretation clause could not be modified to amend an Article bypassing the amendment process.

“We have, therefore, held that the amendments made to Article 370 by taking recourse to Article 367 as ultra vires,” stated the court while holding that the interpretative clause could not be used to bypass the specific route for a constitutional amendment. “Permitting such amendments by such a surreptitious method would be disastrous,” stated the court. The court stated that Article 370 could not be amended by exercise of power under Article 370(1)(d).

The court noted that the SG had submitted that statehood of J&K would be restored and the status of UT was temporary for J&K. In view of the submission made by the SG, the court stated that it did find it necessary to determine whether the reorginazation of J&K into UT was valid.

The reorganisation of Ladakh as Union Territory was upheld as Article 3 allowed a portion of State to be made as UT. The question whether Parliament can convert a State into a Union Territory was left open.

Elections should held in J&K by September 2024

The court directed that steps shall be taken by the Election Commission of India to conduct elections to the J&K assembly by September 30. Further, it stated that the restoration of statehood shall take place as soon as possible.

The petitioner counsels argued for the first nine days and stressed upon the unique nature of J&K’s relationship with India which got embodied in the Indian constitutional setup, highlighting that the Maharaja of J&K did not give up the internal sovereignty to the Dominion of India.

Thus, while the power to make laws relating to foreign affairs, communication, and defence lied with the Union as per the Instrument of Accession (IoA), the internal sovereignty of J&K which provided it with powers to legislate on all other matters remained with the Maharaja. It was argued that Article 370 had assumed permanence and was no longer a ‘temporary’ provision post the dissolution of the J&K Constituent Assembly in 1957.

The petitioners further contended that the Indian parliament, under the current constitutional framework, could not convert itself into a Constituent Assembly. They also stressed upon the misuse of Article 356, which imposes President’s Rule in a State. It was emphasised that the purpose of Article 356 was to restore state machinery and not destroy it but the President’s Rule in J&K was imposed to destroy the state legislature.

It was added that President’s Rule under Article 356 was in its nature “temporary” and thus permanent actions could not be taken under it. The petitioners also argued that the amendment of Article 370 through Article 367 was invalid.

Finally, it was stated that while Article 3 of the Indian Constitution granted the power to Union to alter the boundaries of states and even create smaller states through bifurcation, it had never before been used to convert an entire state into a Union Territory (UT). The negative impact of turning J&K into a UT on the constitutional structure was also underlined. A detailed summary on petitioners’ arguments can be found here.

Per contra, the Union Government along with other respondents argued that the abrogation of Article 370 resolved the ‘psychological duality’ of the people of J&K and that there existed discrimination against the people of J&K before the abrogation as the Indian constitution was not fully applied to the state prior to 2019.

It was underlined that it was very clear that the Constitution makers foresaw Article 370 as a ‘temporary’ provision and wanted it ‘to die’. Challenging the assertion of an exclusive special status for J&K, the respondents argued that during the late 1930s, a multitude of princely states were in the process of drafting their own constitutions.

It was also submitted that the execution of a merger agreement was not necessary to become a part of the Indian nation. Further, internal sovereignty could not be confused with sovereignty. It was stated that J&K was only converted to a UT owing to it being a sensitive border state for a temporary time period and that its statehood would be restored. It was also argued that if Article 367 was not modified, it would have the effect on Article 370 becoming a permanent feature of the Indian Constitution, as sans the Constituent Assembly, Article 370 could never be modified.

Finally, the respondents asserted that the J&K Constitution was subservient and subordinate to the Indian Constitution and the J&K Constitution never had original constituent powers. Thus, even if the Constituent Assembly had been in existence, it would have a limited role to play in abrogation of Article 370 as its decision would be only “recommendatory” in nature and the President could have taken any decision even if the Constituent Assembly did not agree to the same.

Courtesy: The Kashmir Times