Article 370 is a temporary provision with a transitional purpose and was an interim wartime arrangement, noted the Supreme Court while unanimously upholding the Narendra Modi government’s decision to de-operationalise the legislation on Monday.
The five-judge constitution bench of Chief Justice of India DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant had reserved its order on September 5 after hearing a batch of petitions challenging the revocation of Article 370 for 16 days. There were three judgments, one by the CJI for himself, Justices Gavai and Surya Kant, and concurring opinions by Justice Kaul and Justice Khanna, on Monday.
Over 20 petitions had been filed before the top court after the Modi government abrogated the law which granted special status to the erstwhile state of Jammu and Kashmir on August 5, 2019.
Delivering the verdict, CJI Chandrachud pointed to the absence of the mention of sovereignty in the constitution of J&K, and added that the “constituent assembly was never intended to be a permanent body and it was to operate in a period of transition”. He also cited the SR Bommai case to underline limits to the powers of the Union in States “when a proclamation of Presidential rule is in force”
While the BJP has hailed the judgement as a “beacon of hope”, opposition parties in Jammu and Kashmir, have expressed disappointment. National Conference leader Omar Abdullah said he was “disappointed but not disheartened”. People’s Conference chief Sajad Lone said “let us hope at a future date justice wakes up from its slumber of pretence”.
But what did the verdict say? Let’s look at the key takeaways from the 476-page verdict.
Sovereignty of J&K
The verdict concluded that Article 370 was a feature of “asymmetric federalism and not sovereignty”. “The state of Jammu and Kashmir does not retain any element of sovereignty after the execution of the IoA (instrument of accession) and the issuance of the proclamation dated 25 November 1949 by which the Constitution of India was adopted. The state of Jammu and Kashmir does not have ‘internal sovereignty’ which is distinguishable from the powers and privileges enjoyed by other states in the country.”
It also said the constitution of Jammu and Kashmir, unlike India’s, lacked a clear reference to sovereignty.
Additionally, it said the maharaja’s proclamation stated that the constitution of India will supersede after the accession.
Validity of J&K Reorganisation Bill
The order noted that it did not find it necessary to look into the validity of the legislation that divided the erstwhile state into J&K and Ladakh.
“The Solicitor General stated that the statehood of Jammu and Kashmir will be restored (except for the carving out of the Union Territory of Ladakh). In view of the statement we do not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3.”
“However, we uphold the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State; and we direct that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by 30 September 2024. Restoration of statehood shall take place at the earliest.”
President powers ‘not malafide’
The verdict refers to two orders – CO 272 and CO 273 – issued by then President Ram Nath Kovind to announce the changes.
While CO 272 amended the interpretation of ‘constituent assembly’ under Article 370(3) to ‘legislative assembly’ by amending Article 367, CO 273 made Article 370 redundant by making all its provisions ineffective except Clause 1, which states that the Constitution of India will operate in Jammu and Kashmir.
In its verdict, the court said the President’s exercise of powers to issue CO 272 was not malafide. “The President did not have to secure the concurrence of the government of the state or Union government acting on behalf of the state government under the second proviso to Article 370(1)(d) while applying all the provisions of the Constitution to Jammu and Kashmir because such an exercise of power has the same effect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the state government was not required.”
It said that paragraph 2 of CO 272 issued by the President under Article 370(1)(d) applying “all the provisions of the Constitution of India to the state of Jammu and Kashmir is valid”. “Such an exercise of power is not malafide merely because all the provisions were applied together without following a piece-meal approach.”
It also said that the President had the power to declare that Article 370(3) ceases to operate without the recommendation of the constituent assembly. “The continuous exercise of power under Article 370(1) by the President indicates that the gradual process of constitutional integration was ongoing. The declaration issued by the President under Article 370(3) is a culmination of the process of integration and as such is a valid exercise of power. Thus, CO 273 is valid.”
‘Challenge to each decision would lead to chaos’
The order said the Centre takes several decisions on behalf of states when a proclamation under Article 356 is in force. “Every decision and action taken by the Union executive on behalf of the state is not subject to challenge. Opening up challenge to every decision would lead to chaos and uncertainty. It would in effect put the administration in the state at a standstill.”
“This court would enter into the question of whether it was a valid exercise of power only when the petitioner makes a prima facie case that exercise of power is mala fide or extraneous.”
Temporary nature of Article 370
“It can be garnered from the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution that it is a temporary provision,” the court noted.
The verdict said that a combination of factors, such as Article 370’s historical context, its text, and its subsequent practice, indicate that Article 370 was “intended to be a temporary provision”.
“Article 370(3) contained the mechanism to bring the temporary arrangement to an end, and in turn, to de-recognise the internal sovereignty of the state and apply the Constitution of India in toto; since Article 370 is meant to be a temporary arrangement, it cannot be said that the mechanism under Article 370(3) came to an end after the state constituent assembly was dissolved.”
The court said the President’s power under Article 370(3) was “unaffected” by the dissolution of the Constituent Assembly of Jammu and Kashmir.
Lack of constituent assembly
The court pointed out that the petitioners had said that the President could not have exercised powers unilaterally in the absence of the constituent assembly of the state. But the bench did not agree with the view.
“I am unable to agree with this view. When the constituent assembly ceased to exist, only the power of the constituent assembly to make a recommendation ceased to exist, that is, the proviso to Article 370 became otiose. The main provision, which is the President’s power to issue a declaration continued to exist. Adopting the Petitioners’ view would mean that Article 370, which was meant to be temporary, would no longer be temporary after the Constituent Assembly ceases to exist. This is incongruent with the purpose of Article 370.”
Amendment of Article 370 through Article 367
The verdict said that the amendment of Article 370 through Article 367 by paragraph 2 of CO 272 did not follow the procedure prescribed to modify the legislation.
“Article 370 cannot be amended by exercise of power under Article 370(1)(d). Recourse must have been taken to the procedure contemplated by Article 370(3) if Article 370 is to cease to operate or is to be amended or modified in its application to the State of Jammu and Kashmir. Paragraph 2 of CO 272 by which Article 370 was amended through Article 367 is ultra vires Article 370(1)(d) because it modifies Article 370, in effect, without following the procedure prescribed to modify Article 370. An interpretation clause cannot be used to bypass the procedure laid down for amendment.”
Validity of President’s rule
The verdict said that the bench did not need to adjudicate on the validity as it was not the principal challenge and the petitioners had not challenged it until the revocation of Article 370. The court also said a relief could not be granted as President’s rule had ended on October 31, 2019.
“The petitioners did not challenge the issuance of the Proclamations under Section 92 of the Jammu and Kashmir Constitution and Article 356 of the Indian Constitution until the special status of Jammu and Kashmir was abrogated. The challenge to the Proclamations does not merit adjudication because the principal challenge is to the actions which were taken after the Proclamation was issued.”
Sovereignty of states, Parliament powers
The court underlined that states had “no constitutional guarantee” against the Parliament’s power to alter their boundaries.
“If we examine the powers of the Parliament under Article 3, it provides that Parliament may by law inter alia form new States, diminish the area of any State, and alter the boundaries or names of existing states. The explanation I provides that in clauses (a) to (e) of Article 3, a ‘state’ includes ‘Union territory’.”
To underline the same, it pointed to two previous judgments – West Bengal vs Union of India and Babulal Parate vs State of Bombay.
“It would be pertinent to refer to this court’s judgment in the State of WB v Union of India,128 where it was noted that it would be incorrect to presume that absolute sovereignty remained vested in the States. The court drew this conclusion from the framework of the Constitution: noting that there was no concept of dual (State and national) citizenship in India, there were no independent Constitutions of States, and pertinently, Article 3 gave Parliament wide powers to alter the boundaries of States. States themselves had no constitutional guarantee against the Parliament’s exercise of this power,” stated the verdict.
The court said that “under the Constitutional setup, states have no independent or standalone sovereignty”.
“The position that States have no independent sovereignty was also reiterated by this Court in Babulal Parate v State of Bombay, where the court was again persuaded to reach this finding by looking at the nature and extent of Article 3 itself. Another factor that weighed with the court here was that the Parliament was enabled to exercise this power simply by making law, it was thus not even necessary to invoke the procedure of constitutional amendments.”
Justice Khanna’s view
In his concurring judgement, Justice Khanna said he found it “difficult to state that I agree with the reasoning in one and not the other” – referring to the majority verdict and the one by Justice Kaul. “I, therefore, respectfully concur with the two judgments.”
The judge was referring to the majority verdict’s view of the recourse to Article 367 being bad in law. “Paragraph (2) of C.O. 272 by which Article 370 was amended by taking recourse to Article 367 is ultra vires and bad in law, albeit can be sustained in view of the corresponding power under Article 370(1)(d). Most importantly, Article 370 has been made inoperative in terms of clause (3) to Article 370. Lastly, CO 273 is valid.”
He said that “the abrogation of Article 370 does not negate [India’s] federal structure as citizens living in J&K will enjoy the same rights as given to citizens in other parts of the country.”
Justice Khanna said that Union territories are “normally geographically small territories, or may be created for aberrant reasons or causes. Conversion of a state into Union territory has grave consequences, amongst others, it denies the citizens of the state an elected state government and impinges on federalism.”
The truth and reconciliations panel
Justice Kaul, a Kashmiri Pandit, said he agreed with the majority judgment on issues such as the use of Article 356, Article 370, and sovereignty of the erstwhile state. He also wrote an epilogue.
“During my travels home over the years, I have observed the social fabric waning, and the consequences of intergenerational trauma on an already fractured society. I cannot help but feel anguish for what peoples of the region have experienced and am constrained to write this epilogue.”
It is worth noting that even the Partition did not affect communal and social harmony in J&K, he wrote, adding that “Mahatma Gandhi is famously quoted to have said that Kashmir was a ray of hope for humanity”.
Justice Kaul underlined the need to achieve a collective understanding of the human rights violations perpetrated both by state and non-state actors. “What is lacking is a commonly accepted narrative of what happened, or in other words, a collective telling of the ‘truth’.”
“In view of the in-roads made globally, and endogenous requests for truth and reconciliation, I recommend the setting up of an impartial truth and reconciliation commission. The commission will investigate and report on the violation of human rights both by state and non-state actors perpetrated in Jammu and Kashmir at least since the 1980s and recommend measures for reconciliation.”
He said this commission should be formed before “memory escapes”.
Past hearings
The petitioners were represented by several senior lawyers, including Kapil Sibal, Gopal Subramanium, Rajeev Dhavan, Dushyant Dave and Gopal Sankaranarayanan.
The petitioners had called the Centre’s decision an attack on federalism. They argued that the Centre used brute majority in Parliament and issued orders through the President to bifurcate a full-fledged state. They said a merger agreement should have been executed similar to other princely states.
In 2020, the court had denied the demand by a few petitioners to refer the petitions to a seven-judge constitution bench. It only began hearing the matter in August this year.
Read all about it here.
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