The court's Constitution Bench, headed by the Chief Justice, is delivering three separate but concurring judgements.
Published Dec 11, 2023 | 12:12 PM ⚊ Updated Dec 11, 2023 | 3:08 PM
The Supreme Court of India. (iStock)
A five-judge bench of the Supreme Court led by Chief Justice DY Chandrachud on Monday, 11 December, ruled that Article 370 of Jammu and Kashmir “is a temporary provision”, and that the “effect of the Presidential Power to issue a notification abrogating Article 370 subsists”.
It also asked the Union government to take steps “so that elections are held in Legislative Assembly of Jammu and Kashmir by September 2024 and Statehood shall be restored as soon as possible”.
On the question of the state of J&K being consulted before the abrogation, the court said: “We hold that the President seeking concurrence of the Union and not the state is not invalid. Thus, all provisions of the Constitution can be applied to Jammu and Kashmir.
“Consultation between states would be needed only when amendments are needed in the state constitution to ensure that the constitution of the state is not inconsistent. The principle of consultation and collaboration was not needed here. Mala fide can only be there when there is an intention to deceive.”
However, while upholding Ladakh’s status as a Union Territory, the Constitution Bench did not adjudicate on whether the nature of a state can be altered by the Union government when the state is under President’s Rule.
The five-judge Constitution Bench of the Supreme Court is pronouncing three separate judgements to decide the validity of the Union government’s decision of 5 August 2019 to abrogate the provisions of Article 370 of the Constitution, which bestowed a special status on the erstwhile state of Jammu and Kashmir.
The bench comprises Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.
The majority judgement was authored by CJI Chandrachud, also speaking for Justice Gavai and Justice Surya Kant, while Justice Kaul and Justice Khanna were delivering separate but concurring judgements.
On the validity of the exercise of power by Parliament, the court said, “Could the Parliament have substituted the views of the State Legislature? The views of State Legislature were not binding on Parliament.”
Delivering his judgement on the challenges to the abrogation of Article 370 in Jammu and Kashmir, the Chief Justice of India, DY Chanadrachud, said: “Article 370 of the Constitution was an interim arrangement due to war conditions in the state.”
The Chief Justice said, “We have held all provisions of the Constitution of India can be applied to Jammu and Kashmir, and non-application of mind cannot be claimed.”
The bench said the court cannot sit in appeal over the decision of the President of India. The decision is, however, not beyond judicial review, and a slew of Constitutional Orders under Article 370(1)(d) shows that the Union and the State, through a collaborative process, had applied the Constitution of India to the State of Jammu and Kashmir.
This shows the gradual process of integration was ongoing, and thus, “we do not find the use of Presidential power was malafide. Thus we hold the Presidential power to issue the notification was valid”.
The bench said, “The recommendation of the Constituent Assembly was not binding on the President.” It said the Constituent Assembly was never intended to be the 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.
On the effect of the dissolution of the Constituent Assembly, the bench said, “We hold that the effect of the Presidential Power to issue a notification abrogating Article 370 subsists. A ruler of each Indian state had to issue a proclamation adopting the Constitution of India.”
However, the question of whether Parliament can extinguish the character of statehood by converting a state into one or more Union Territories by exercising power under Article 3 has been left open by the Supreme Court.
“In an appropriate case, this court must construe the scope of Article 3 in light of the necessary effect of converting a state into Union Territories, which is that the autonomy would be diminished, the historical context for the creation of federating units, and its impact on the principles of federalism and representative democracy,” the CJI noted.
On the challenge to Constitutional Order 273, the Chief Justice said, “To answer this, we have to decide if 370 is a temporary provision. We hold that Article 370 is a temporary provision. It was introduced to serve transitional purposes in an interim process. It was for a temporary purpose because of war conditions in the State. Textual reading also shows it is a temporary provision, and thus it was placed in Part 21 of the Constitution.”
On the matter of the internal sovereignty of J&K, the Supreme Court bench said, “We hold that it does not hold any internal sovereignty after accession to the Union of India.” The proclamation by Yuvraj Karan Singh in 1949 and the Constitution thereafter cemented it. That the state of Jammu and Kashmir became an integral part of India is evident from Article 1 of the Constitution of India.
The bench explained, “All states in the country have legislative and executive powers… Articles 371 (a) to (j) are examples of special arrangements of different states and an example of asymmetric federalism. Thus, Jammu and Kashmir does not have internal sovereignty and (is) like all states and Union Territories of India.”
The CJI said this court need not adjudicate on the validity of the President’s proclamations because the main challenge was to abrogation and if it can be done during the President’s Rule and even if it is held proclamation could not be done, no material to say the President’s Tule cannot be invoked. These challenges form the fulcrum of challenges by petitioners.
The CJI said the reference before the Constitution bench raised the following questions:
Justice Sanjay Kishan Kaul, in his concurring opinion, said Article 370 was a temporary provision and the means was to derecognise internal sovereignty. The purpose of the Constituent Assembly was to bring the state to par with other states in India and help in gradual integration.
On a sentimental note, Justice Kaul said the valley of Kashmir carries a historical burden and “We the people of Jammu and Kashmir are at the heart of the debate”.
He said, “Armies are meant to fight battles against enemies… not to control law and order in the state. The entry of the army created its own ground realities in the state… men women and children have paid a heavy price.”
He recommended setting up a Truth and Reconciliation Commission to look into alleged violations of human rights by both state and non-state actors in Jammu and Kashmir.
“The Commission must be set up before memory escapes. The exercise must be time-bound. There is an entire generation of youth that has grown up with a feeling of distrust and it is to them that we owe the greatest day of liberation,” he said.
Leaving it to the government to set up the commission, Justice Kaul cautioned that the Commission must not “turn into a criminal court” and must offer a platform for dialogue instead.
In his concurring judgment, Justice Sanjiv Khanna said that Article 370 signified asymmetric federalism and was not indicative of the sovereignty of J&K. Its abrogation did not erode federalism, he noted.
The verdict is on a batch of petitions challenging the Union government’s 5 August, 2019, move to revoke Article 370, which conferred special status to the erstwhile State of Jammu and Kashmir.
The Court heard the matter for 16 days before reserving its verdict on 5 September.
Over 20 petitions were filed before the Supreme Court challenging the abrogation of Article 370 of the Constitution, which resulted in the revocation of Jammu and Kashmir’s special status. The erstwhile state was subsequently bifurcated into two Union Territories.
