Article 370 is a temporary provision with a transitional purpose and was an interim arrangement in special circumstances of war, noted a five-judge constitution bench while delivering its verdict in the Article 370 abrogation case today. Jammu and Kashmir does not have internal sovereignty and is like all states and union territories of India, the court said.
The 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.
Over 20 petitions had been filed before the top court after the Narendra Modi government abrogated the law which granted special status to the erstwhile state of Jammu and Kashmir on August 5, 2019.
At the outset of the hearing, CJI Chandrachud said that there were three judgments, one by the CJI for himself, Justices Gavai and Surya Kant. “There is a concurring opinion authored by Justice Sanjay Kishan Kaul. Justice Sanjiv Khanna has concurred with both the judges,” he said.
Reading out the verdict, CJI Chandrachud said that the presidential power to issue the notification was valid and the court did not find its use invalid. He further said the constitution of J&K was only to further define its relationship with the Union of India. “There is a clear absence of a reference to sovereignty in the constitution of Jammu and Kashmir.”
“Whether Jammu and Kashmir retained an element of internal sovereignty after it acceded to India…we hold that it does not hold any internal sovereignty after accession to Union of India.”
CJI Chandrachud also pointed to the SR Bommai case to underline limits to the powers of the Union in States “when a proclamation of Presidential rule is in force”. “SR Bommai judges adopted a different approach to test validity of power exercised by the President... This bench is bound by the SR Bommai case judgment (a nine-judge bench decision) since we are in five judges combination... We hold that limitations are there when proclamation is made under Article 356.”
CJI Chandrachud said that the “constituent assembly was never intended to be a permanent body and it was to operate in a period of transition”. “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 remained.”
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.
During the hearing, the Centre argued that the draft accession pact was the same for all princely states and J&K did not have any special status. The government said that Parliament exercises the powers of the state assembly whenever there is President’s rule.
The Centre also said that the revocation was aimed at countering the situation faced by the nation considering that one part of the territory was already occupied by Pakistan.
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