The Supreme Court had upheld the Centre's 2019 decision and ordered assembly elections in Jammu and Kashmir by September-end this year
Supreme Court
The Supreme Court, on Tuesday 22 May, dismissed a batch of petitions seeking review of its December 11, 2023 verdict that unanimously upheld the Centre’s decision to abrogate provisions of Article 370 bestowing special status to the erstwhile state of Jammu and Kashmir.
A five-judge bench headed by Chief Justice DY Chandrachud considered the pleas in chambers and dismissed applications for listing the review petition in open Court.
“Having perused the review petitions, there is no error apparent on the face of the record. No case for review under Order XLVII Rule 1 of the Supreme Court Rules 2013. The review petitions are, therefore, dismissed,” the bench, also comprising justices Sanjiv Khanna, B R Gavai, Surya Kant and A S Bopanna (since retired) said in its 1 May 1.
It also rejected permission to appear and argue in person, a request from various petitioners.
The review petitions were filed by Awami National Conference, Jammu and Kashmir People Democratic Party, CPI(M) leader Mohammed Yousuf Tarigami, Jammu and Kashmir High Court Bar Association and lawyer Muzaffar Iqbal Khan.
On 11 December, the top court while upholding the Centre’s 2019 decision, had ordered assembly elections in Jammu and Kashmir by September-end this year and restoration of statehood “at the earliest”.
Holding that Article 370, which was incorporated in the Indian Constitution in 1949 to grant special status to Jammu and Kashmir, was a temporary provision, a five-judge Constitution bench headed by Chief Justice Chandrachud said the President of India was empowered to revoke the measure in the absence of the Constituent Assembly of the erstwhile state, whose term expired in 1957.
Settling the decades-long debate over the contentious issue of Article 370 after a marathon 16-day hearing, the five-judge bench had delivered three concurring judgments upholding the abrogation of Article 370 that provided a unique status to Jammu and Kashmir when it acceded to the Union of India in 1947.
Justice (since retired) Sanjay Kishan Kaul and Justice Sanjiv Khanna penned separate but concurring verdicts on the issue.
The apex court had also upheld the validity of the Centre’s decision to carve out the Union Territory (UT) of Ladakh from the erstwhile state.
The top court had said the erstwhile state does not retain any “element of sovereignty” after the execution of the Instrument of Accession and the issuance of the proclamation dated 25 November 1949, by which the Constitution of India was adopted. It also held that Article 370 was a feature of “asymmetric federalism and not sovereignty”.
CJI Chandrachud had referred to Solicitor General Tushar Mehta’s statement that Jammu and Kashmir’s statehood will be restored, except for the carving out of the UT of Ladakh. While splitting the state into two UTs, the government provided for legislative assembly only for the UT of Jammu and Kashmir.
“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,” the CJI had said in the verdict.
The bench had dealt with the validity of the Constitution (Application to Jammu and Kashmir) Order (CO)-272 dated 5 August 2019, by which all provisions of the Constitution of India were applied to Jammu and Kashmir and the word ‘constituent assembly’ in Article 370 (3) was modified to ‘Legislative Assembly’.
“The concurrence of the Government of the State was not necessary for the President to exercise power under Article 370(1)(d) to apply all provisions of the Constitution to Jammu and Kashmir. The exercise of power by the President under Article 370(1)(d) to issue CO-272 is not mala fide. Thus, CO-272 is valid to the extent that it applies all the provisions of the Constitution of India to the State of Jammu and Kashmir,” it had said.
The top court had also upheld the validity of the CO-273 that abrogated Article 370, saying the declaration issued by the President is a culmination of the process of integration and as such is a valid exercise of power.
The CJI had said the Constitution was a complete code for constitutional governance.
“The President had the power to issue a notification declaring 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 CJI had said in a 352-page verdict.
The petitioners had contended that Article 370 could not have been amended without the concurrence of the state’s Constituent Assembly which ceased to exist in 1957, and argued that the constitutional provision attained permanence in its absence.
Pronouncing his verdict, Justice (retd) Kaul said the purpose of Article 370 was to slowly bring J&K at par with other Indian states.
He had ordered the setting up of an “impartial truth-and-reconciliation commission” to probe human rights violations, both by state and non-state actors, at least since 1980.
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