SC upholds abrogation of Article 370

New Delhi, Dec 11: A five-judge Constitution bench of the Supreme Court Monday unanimously upheld the validity of the union government's 2019 decision to abrogate Article 370 of the constitution which conferred the special status of Jammu and Kashmir, while pointing out that Article 370 was a “temporary provision”.

A five-judge constitution bench comprising Chief Justice of India D Y Chandrachud, Justices Sanjay Kishan Kaul, Sanjiv Khanna, B R Gavai, and Surya Kant said, “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 apex court said that Article 370 was enacted due to wartime conditions in the State and was meant to serve a transitional purpose.

“Article 370 was introduced to serve two purposes. First, the transitional purpose: to provide for an interim arrangement until the Constituent Assembly of the State was formed and could take a decision on the legislative competence of the union on matters other than the ones stipulated in the Instrument of Accession, and ratify the constitution; and second, a temporary purpose: an interim arrangement given the special circumstances because of the war conditions in the State,” the constitution bench stated in its verdict.

The top court said, “We have held that a textual reading of Article 370 also indicates that it is a temporary provision. For this purpose, we have referred to the placement of the provision in Part XXI of the constitution which deals with temporary and transitional provisions, the marginal note of the provision which states ‘temporary provisions concerning the State of Jammu and Kashmir’, and a reading of Articles 370 and 1 by which the State became an integral part of India upon the adoption of the Constitution.”

The petitioners, challenging the abrogation of Article 370, had said that Article 370 was no longer a “temporary provision” and it had assumed permanence post the dissolution of the Constituent Assembly of J&K.

The five-judge bench pronounced three concurring verdicts – one by CJI D Y Chandrachud for himself and Justices Gavai and Surya Kant.

Justices Sanjay Kishan Kaul and Sanjiv Khanna have authored two separate concurring judgments.

The top court held that the State of Jammu and Kashmir did not retain an element of sovereignty when it joined the Union of India.

The apex court said that although Maharaja Hari Singh, the erstwhile ruler of the princely state, issued a proclamation that he would retain his sovereignty, his successor Karan Singh issued another proclamation that the Indian constitution would prevail over all other laws in the State.

It said, “The proclamation reflects the full and final surrender of sovereignty by Jammu and Kashmir, through its sovereign ruler, to India - to her people who are sovereign.”

Neither the constitutional setup nor any other factors indicate that the State of Jammu and Kashmir retained an element of sovereignty, it said.

“The constitution of Jammu and Kashmir was only to further define the relationship between the Union of India and the State of Jammu and Kashmir,” the bench ruled.

“The State of Jammu and Kashmir became an integral part of the Union of India is evident from Articles 1 and 370 of the Indian constitution. It is reiterated in Section 3 of the constitution of Jammu and Kashmir, which is unamendable,” it said.

The apex court said that simply because the Constituent Assembly ceased to exist, it did not mean Article 370 would continue permanently.

“The President was empowered to issue the order to abrogate Article 370,” the top court said.

“The exercise of power by the President under Article 370 (1) (d) to issue Constitutional Order (CO) 272 is not mala fide. The President in exercise of power under Article 370 (3), can unilaterally issue a notification that Article 370 ceases to exist. The President did not have to secure the concurrence of the government of 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," the verdict stated.

“Article 370 (3) was introduced for constitutional integration and not for constitutional disintegration. Holding that 370 (3) cannot be used after constituent assembly was dissolved cannot be accepted," it said.

It upheld CO 272 issued by the President on August 5 to the extent it made provisions of the Constitution of India applicable to Jammu and Kashmir.

Further, it took into note Solicitor General Tushar Mehta's submission that the Statehood of Jammu and Kashmir would be restored, except for the Union Territory of Ladakh.

“Given 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 given Article 3 (a) read with explanation which permits forming a Union Territory by separation of a territory from any State," the bench said.

It directed that steps should be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir by September 30, 2024.

It said that restoration of statehood should take place at the earliest and as soon as possible.

The constitution bench was hearing a batch of petitions challenging the abrogation of Article 370 of the constitution and bifurcating the state into two Union Territories.

Several petitions were filed in the top court including those of private individuals, lawyers, activists, politicians, and political parties challenging the Jammu and Kashmir Reorganisation Act, 2019, which splits Jammu and Kashmir into two Union Territories – Jammu and Kashmir, and Ladakh.

On August 5, 2019, the Central government announced the revocation of the special status of Jammu and Kashmir granted under Article 370 and split the region into two Union Territories.

SC JUDGEMENT AT A GLANCE

CJI D Y Chandrachud said that it cannot accept the petitioners’ argument that the Union government cannot take actions having irreversible consequences when a proclamation issued by the President under Article 356 is in force.

CJI Chandrachud said, “The scope of powers exercised by the Union government must depend on circumstances for issuing the proclamation (under Article 356 of the Constitution).”

He said that every action taken by the Union government on behalf of the state government is not open to challenge in court.

“Opening up challenges to every decision would lead to chaos and uncertainty and in effect, would put the administration in a state of standstill,” held CJI Chandrachud.

Pronouncing the verdict on a batch of pleas challenging abrogation of Article 370, he said that there are limitations prescribed by the Constitution on power of the Union government which can be exercised in states when a proclamation issued by the President under Article 356 is in operation.

Pronouncing the verdict on pleas challenging the abrogation of Article 370 of the Constitution, CJI D Y Chandrachud said that the Supreme Court need not adjudicate on the validity of the President’s rule imposed in Jammu and Kashmir in December 2018.

“The pleading of the petitioners indicates that the principal challenge is to abrogation of Article 370 and whether such action could have been taken during the President’s rule,” CJI Chandrachud said.
He said that even if the Supreme Court holds that the proclamation under Article 356 could not have been issued, no material relief could be given because the President’s rule was revoked in the state in
October 2019.

CJI D Y Chandrachud said that the State of Jammu and Kashmir did not retain any element of sovereignty, including internal sovereignty when it joined the Union of India.

“We have held that the state of Jammu and Kashmir did not retain any element of sovereignty or internal sovereignty when it joined the Union of India,” said CJI Chandrachud, adding that Article 1 and 370 indicate that J&K is an integral part of India.

He said that J&K surrendered its sovereignty completely to the Union of India and the Constitution of Jammu and Kashmir was to further define the relationship between the Union of India and the state of Jammu and Kashmir.

“There is a clear absence in the Constitution of J&K of a reference to ‘sovereignty’ and in contrast, the Constitution of India emphasizes in its preamble that the people of India resolves to constitute themselves into a ‘sovereign, socialist, secular and democratic republic’,” CJI Chandrachud said.

He said, “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.”

CJI Chandrachud held that the Preamble and Sections 3, 5 and 147 of the Constitution of Jammu and Kashmir coupled with Article 1 of the Constitution of India read with the First Schedule as well as Article 370 indicate in “no uncertain terms” that the State is subordinate to the Indian Constitution first and only then to its own Constitution.

The Supreme Court held that Article 370 is a temporary provision considering the historical context in which it was included.

CJI D Y Chandrachud said that Article 370 was introduced to serve two purposes.

First, it served the transitional purpose of providing for an interim arrangement until the Constituent Assembly of the State was formed and could take a decision on the legislative competence of the Union on matters other than the ones stipulated in the Instrument of Accession, and ratify the Constitution.

Second, a temporary purpose is to make an interim arrangement given the special circumstances because of the war conditions in the state.

CJI Chandrachud said, “We have held that a textual reading of Article 370 also indicates that it is a temporary provision.

"For this purpose, we have referred to the placement of the provision in Part XXI of the Constitution which deals with temporary and transitional provisions, the marginal note of the provision which states 'temporary provisions concerning the State of Jammu and Kashmir', and a reading of Articles 370 and 1 by which the State became an integral part of India upon the adoption of the Constitution.”

The Supreme Court held that the President had the power to issue a notification declaring that Article 370 ceases to exist even after the dissolution of the Constituent Assembly of Jammu and Kashmir.

CJI D Y Chandrachud said that the effect of the President declaring under Clause 370 (3) that Article 370 ceases to exist is that provisions of the Constitution which apply to every other state would equally apply to the State of Jammu and Kashmir.

CJI Chandrachud said that holding that the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would lead to the “freezing of the process of integration
contrary to the purpose of introducing the provision”.

He added: “If the contention of the petitioners on the interpretation of Article 370 vis-à-vis the dissolution of the Constituent Assembly is accepted then Article 370(3) would become redundant and would lose its temporary character.”

CJI Chandrachud held that the President while deciding if the power under Article 370(3) must be exercised, is a policy decision which completely falls within the realm of the executive.

“The Court cannot sit in appeal over the decision of the President on whether the special circumstances which led to the arrangement under Article 370 have ceased to exist,” he said.

CJI Chandrachud held that the declaration issued by the President in the exercise of the power under Article 370(3) is a culmination of the process of integration and did not find that the President’s exercise of power under Article 370(3) was mala fide.

The Supreme Court also recommended the setting up of an impartial Truth and Reconciliation Commission to investigate and report on the violations of human rights in Jammu and Kashmir.

“I recommend the setting up of an impartial Truth and Reconciliation Commission. The Commission will investigate and report on the violations of human rights perpetrated both by the State and non-state actors in Jammu and Kashmir at least since the 1980s and recommend measures for reconciliation,” said Justice S K Kaul in his separate concurring opinion rendered on a batch of pleas challenging
abrogation of Article 370 of the Constitution.

Justice Kaul said that the Commission must be formed expeditiously before “memory escapes” and directed the Union government to ensure that this entire exercise must be completed in a time-bound manner.
He added, “There is already 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.”

Justice Kaul said that the Commission should not turn into a criminal court but must enable people to share what they have been through.

BY IANS and ANI