The Supreme Court on Monday (11th December) upheld the abrogation of Article 370, which grants a special and separate Constitution to Jammu and Kashmir. Article 370 and Article 35A of the Indian Constitution gave special status to Jammu and Kashmir thereby giving it a separate identity than the rest of India.
On 5th August 2019, the Modi government revoked Article 370 and 35A thereby enabling the full and final Constitutional integration of the region into India. The same was immediately challenged by Advocate Manohar Lal Sharma who filed a petition under Article 32.
The five-judge Constitution bench comprising of Chief Justice DY Chandrachud, Justices SK Kaul, Sanjeev Khanna, BR Gavai and Surya Kant delivered a series of significant observations while upholding the abrogation of Article 370.
There were three judgments authored by the Supreme Court including by the CJI, Justice Gavai and Justice Surya Kant. A concurring opinion was authored by Justice SK Kaul and Justice Sanjeev Khanna had concurred with both judgments.
On the issue of the President empowered to withdraw executive and legislative powers from the state and transfer it to the Union
To the question of the power of the President under Article 356 to designate the executive and legislative powers of a state to the Union, the CJI listed a 6-point conclusion.
Upholding this power, in the 6th and last point, the CJI stated that every decision taken by the Union 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,” CJI Chandrachud read.
The SC laid down the criteria to assess action under Article 356 after it is exercised or brought into effect.
The criteria stated by the SC was in three points which read as follows:
“a) The exercise of the power by the President under Article 356 must have a reasonable nexus to the object of the Proclamation.”
b) The person challenging the exercise of power must prima facie establish that it is a malafide or extraneous exercise of power. After a prima facie case is made, the ownership to the Union to justify that the exercise of the power had a reasonable nexus for the object of the proclamation.
c) The exercise of power by the President for everyday administration of the state is not ordinarily subject to judicial review.”
This essentially means that the Supreme Court laid down criteria for challenging the implementation of Article 356 after it is invoked by the Union. And this requires for the objecting party to prove that the exercise of the power is malafide.
Moreover, the Supreme Court refused to accept the petitioner’s argument that the Union Government cannot take action which has irresversible consequences when a proclamation under Article 356 is imposed.
The SC also did not accept the petitioner’s argument that Parliament can assume only the lawmaking powers of the legislature of the state when the Proclamation under Article 356 is issued.
The Court observed that while exercising the powers of the legislature of the state under relevant Articles, the Parliament and the President are not delayed or blocked by absence of competence.
On the issue of whether Jammu and Kashmir retained “internal sovereignity when it joined the Union of India”
The SC held in clear words that the state of Jammu and Kashmir did not enjoy internal sovereignity when it joined the Union of India by signing the instrument of accession.
The SC cited the instrument of accession signed by the then ruler of Kashmir Raja Hari Singh.
The SC observed that according to paragraph 8 of the instrument of accession, “nothing in the instrument would affect the continuance of the sovereignity of the Maharaja in the over the state.”
The SC then observed that on 25th November 1949 a proclamation was issued for Jammu and Kashmir by Yuvraj Karan Singh which declared that the Constitution of India would not only supercede all other constitutional provisions in the state but also abrogate them.
The SC held that that with this proclamation, the paragraph 8 of the instrument of accession ceased to be of legal consequence.
The bench held that the proclamation reflects full and final surrender of Jammu and Kashmir to its sovereign ruler, to India, to her people who are sovereign.
Furthermore, the SC categorically stated that neither does the Constitutional setup nor any other factors indicate that J&K retained an element of sovereignity.
In a significant observation, the SC stated that the Constitution of Jammu and Kashmir was only to further define the relationship between the Union of India and the state of J&K whereas, it observed, that the relationship itself was already defined by the instrument of accession, the proclamation of 1949 and “more importantly” by the Constitution of India.
The SC pointed the absence of the reference to sovereignity in the Constitution of Jammu and Kashmir.
“In contrast, the Constitution of India emphasizes in the preamble that the people of India resolve to constitute themselves or to constitute India into a sovereign, socialist, secular, democratic Republic,” the CJI read.
The SC stated that Article 1 and Article 370 of the Indian Constitution make it evident that J&K is an integral part of India. The apex court also pointed out that the same is reiterated in Section 3 of the constitution of J&K which is unamendable.
The SC also observed that the Preamble of the constitution of J&K; sections 3, 5 and 147 of the state constitution coupled with Article 1 of the Indian Constitution read with the First Schedule as well as Article 370 “indicate in no uncertain terms” that J&K is subordinate to the Indian Constitution first and only then to its own constitution.
The SC also observed that the Constitution has provisions specific to the varying concerns of various states depending upon the degree of their concerns. These provisions, the SC observed, are specific to that state.
To that effect, the SC noted that the powers and privileges of Jammu and Kashmir are not distinguishable from the powers and privileges that are enjoyed by other states.
On the issue of the challenge to Constitutional Order (CO) 273
The SC said that in order to answer this question, the bench had to decide on two other issues. The first issue was whether Article 370 is temporary.
The SC held that Article 370 is a temporary provision “on the reading of the historical context in which it was included”. The SC elaborated on the same as follows.
SC held that the Article 370 was implemented to provide for an “interim arrangement until the constituent assembly of J&K was formed and to 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”.
The second reason for Article 370, the SC observed, as a temporary purpose and interim arrangement in view of the special circumstance because of the war-like conditions in the state.
The SC observed that a textual reading of Article 370 indicates that it is a temporary provision.
The second issue was the effect of the dissolution of the constituent assembly of Jammu and Kashmir on the scope of powers under clause 3 of Article 370.
In a big blow to the petitioners, the SC upheld the powers of the President under Article 370 clause 3 to issue a notification declaring that Article 370 ceases to exist.
Moreover, the SC ruled that the President of India very much has this power even after the dissolution of the constituent assembly of J&K.
The reasons cited by the SC for the same were as follows. The SC stated that clause 3 of Article 370 encapsulates the process by which the states could ratify the Constitution of India.
The Constitution of India was ratified by every ruler of every Indian state on recommendations of the constituent assembly.
In states where the constituent was not yet formed, the ruler had to ratify the Constitution. Once the constituent assembly was formed in these states, they could call for modification to the Constitution required for the state.
The SC ruled that the recommendation of the Constituent assembly was not binding on the President.
Furthermore, the SC observed that constituent assembly of Jammu and Kashmir was formed for framing the Constitution for the state and was not intended to be a permanent body but one for a specific purpose.
Hence, the SC observed, that the power conferred to Article 370 clause 3 was only for the period of transition when the constituent assembly of J&K was formed pending the drafting of the state constitution.
The Supreme Court observed that holding that the power under Article 370 clause 3 cannot be exercised after the dissolution of the constituent assembly would lead to the freezing of the process of integration.
The SC added that the power of the President notfying that Article 370 ceases to exist applies equally to all states including to J&K under the First Schedule of the Indian Constitution.
“Article 370 1D and Article 370 (3) were introduced with the purpose of constitutional integration and not for disintegration. So the power under Article 370 1D and Article 370 clause 3, even when exercised to its fullest extent does not freeze the system of integration contemplated by art 370 but is rather intended to enhance constitutional integration between the Union of India and J&K,” the SC ruled.
Lastly, the SC observed that the President determines whether special circumstanes which warranted Article 370 have ceased to exist and that “it is a policy decision which completely falls within the realm of the executive”.
The SC clearly observed that the Court cannot sit and appeal over the decision of the President of India on whether the special circumstances that led to Article 370 have ceased to exist.
“However, the decision is not beyond the scope of judicial review,” the SC observed adding that the exercise of executive power can be challenged on the grounds of malafide.
A very significant observation made by the Supreme Court was that the Constitutional integration of J&K into the Union of India was a process ongoing for the past 70 years and not a sudden one.
The SC observed that it was not that only Article 1 and Article 370 were applied to J&K and neither was the entire Constitution suddenly applied to J&K after 70 years.
“The slew of Constitutional orders issued by the President under Article 370 1D applying various provisions of the Constitution and applying provisions of modification indicate that over the course of the last 70 years the Union and J&K have through a collaborative exercise Constitutionally integrated the state of J&K with the Union,” it observed.
The SC thereby also upheld that the exercise of power by the President to issue CO 273 was valid. Constitutional Order (CO) 273 issued by the President essentially sealed the abrogation of Article of 370 in J&K.
On the issue of challenge to CO 272
The SC held that all provisions of the Constitution can indeed be applied to J&K under Article 370 1D.
The SC categorically ruled that the power under Article 370 1D can be used to apply one provision, more than one provision, an entire part of the Constitution or all the provisions of the Constitution that is the entire Constitution.
“The provision does not make a distinction between one or all provisions of the Constitution. Non application of mind cannot be claimed merely because of CO 272 applies all provisions of the Constitution to J&K in one go,” the SC ruled.
On the issue of challenge to CO 272
The SC held that the President seeking the concurrance of the Union Government instead of the state government to issue CO 272 is not invalid.
The SC observed that the application of power by President under Article 370 1D is similar to the application of Article 370 clause 3 notifying that Article 370 shall cease to exist with the exception that the former can be reversed and the latter cannot.
The SC ruled that consultation and collaboration between the Union and the state is necessary only where a application provision of the Indian Constitution would require amendment to the state constitution.
This, the SC observed, is to ensure that the constitution of the J&K is not inconsistent to the Indian Constitution. The SC observed that the principle of consultation and collaboration by the Union with the state is not required to be followed.
The SC further held that the exercise of power is malafide only if inteded to deceive. The SC ruled that the President securing the concurrance of the Union of India on behalf of the state government is not malafide.
On the validity of Parliament’s exercise of power under Article 3
The Supreme Court cited the observations of the 5-Judge SC bench in Babulal Parate case. Th had held that the views held by the state legislature under the proviso to Article 3 are not binding on the Parliament.
The SC held that the Parliament’s exercise of power under the first proviso of Article 3 is valid and not malafide, the SC held.
On the issue of validity of Jammu and Kashmir Reorganisation Act 2019
The SC mentioned the submission of the Solicitor General that the statehood of J&K will be restored and that the status of Union Territory is only temporary.
The SC also mentioned that the SG submitted that the status of Ladakh as a UT will not be affected by the restoration of the statehood of J&K.
In view of the submission, the SC held that it is not necessary to determine whether the reorganisation of J&K into two Union Territories of Ladakh and J&K is permissible under Article 3.
The SC also ruled that elections to J&K cannot be put on hold until statehood is restored and directed that the Election Commision of India take steps to conduct elections in J&K on 30th September 2024.
The SC directed that the restoration of statehood should be done as early as possible.
The epilogue by Justice SK Kaul
Justice SK Kaul’s epilogue after his judgement was a key highlight of the judgment by the Supreme Court. A Kashmiri Pandit himself, Justice Kaul echoed the struggles of the community.
He called on the “need to achieve collective understanding of the human rights violations perpetuated both by state and non-state actors of the people of this region”.
Justice SK Kaul recommended the setting up of a Truth and Reconciliation Committee (TRC) to investigate the violation of human rights violation both by state and non-state actors perpetrated in Jammu and Kashmir at least since 1980s and recommend measures for reconciliation.
“The commission should be set up expeditiously before memory escapes. The exercise should be time bound,” he said.