Orders restoration of Statehood, polls by Sept 2024
* Govt decision to carve out UT of Ladakh too upheld
* Prez was empowered to revoke 370 in absence of constituent Assembly
* Art was temporary, not intended to be a permanent feature
* J&K doesn’t have internal sovereignty distinguishable from power of other States
NEW DELHI, Dec 11: In an emphatic victory for the Modi Government, the Supreme Court today unanimously upheld its decision to abrogate Article 370 of the Constitution that bestowed special status upon the erstwhile State of Jammu and Kashmir, ordered restoration of Statehood “at the earliest” and set a September 30, 2024 deadline for holding the Assembly elections.
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Settling the decades-long debate over the vexed Constitutional provision, a five-Judge constitution bench headed by Chief Justice D Y Chandrachud delivered three concurring judgements upholding abrogation of Article 370 that provided a unique status to Jammu and Kashmir when it acceded to the Union of India in 1947.
Writing the judgement for himself and Justices B R Gavai and Surya Kant, CJI Chandrachud ruled that Article 370 was a temporary provision and the President of India was empowered to revoke it in the absence of the Constituent Assembly of the erstwhile State whose term expired in 1957.
“Article 370 of the Constitution read together with Article 1 leaves no manner of doubt that the integration of Jammu and Kashmir as a part of the nation, which in itself was a Union of States, was complete. Any interpretation of Article 370 cannot postulate that the integration of Jammu and Kashmir with India was temporary,” the court held.
Justices Sanjay Kishan Kaul and Sanjiv Khanna penned separate but concurring verdicts on the issue.
The apex court also upheld the validity of the Union Government’s decision to carve out the Union Territory of Ladakh from the erstwhile State of Jammu and Kashmir.
CJI Chandrachud referred to Solicitor General Tushar Mehta’s statement that Jammu and Kashmir’s Statehood will be restored, except for the carving out of the Union Territory of Ladakh. While splitting the State into two Union Territories, 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,” he said.
The bench dealt with the validity of the Constitution (Application to Jammu and Kashmir) Order (CO)-272 dated August 5, 2019 by which all provisions of the Constitution of India were applied to J-K and the word ‘constituent assembly’ in Article 370 (3) was modified to ‘Legislative Assembly’.
“Article 370 cannot be amended by exercise of power under Article 370(1)(d),” the bench said, adding, “Paragraph 2 of CO 272 by which Article 370 was amended through Article 367 is ultra vires Article 370(1)(d) because it modifies Article 370, in effect, without following the procedure prescribed to modify Article 370. An interpretation clause cannot be used to bypass the procedure laid down for amendment.”
The bench said recourse must have been taken to the procedure contemplated by Article 370(3) if Article 370 was to cease to operate or was to be amended or modified in its application to Jammu and Kashmir.
“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 said.
The top court 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 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 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 that ceased to exist in 1957, and argued that the constitutional provision attained permanence in its absence.
“We direct that steps shall be taken by the Election Commission to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by September 30, 2024. Restoration of Statehood shall take place at the earliest…,” the CJI said.
“The exercise of power by the President after the Proclamation under Article 356 is issued is subject to judicial review. The exercise of power by the President must have a reasonable nexus with the object of the Proclamation,” the CJI asserted.
He said those challenging the exercise of power must prima facie establish that it was a mala fide or extraneous exercise of power.
Pronouncing his verdict, Justice Kaul said the purpose of Article 370 was to slowly bring J&K at par with other Indian states.
He ordered 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.
Justice Khanna, in his separate verdict, concurred with the CJI and Justice Kaul and gave his own reasons for the conclusion.
Article 370 of the Constitution, which bestowed special status on the erstwhile State of Jammu and Kashmir, was a “temporary provision” and any interpretation of the provision cannot postulate that integration of J-K with India was temporary, the Supreme Court ruled.
Upholding the abrogation of the controversial provision, the apex court said Article 370 read together with Article 1 of the Constitution leaves no manner of doubt that the integration of J-K as a part of the nation, which in itself was a Union of states, was complete.
“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,” Chief Justice of India D Y Chandrachud, writing for himself and justices B R Gavai and Surya Kant, said in his 352-page verdict.
The apex court dealt with the question – whether the provisions of Article 370 were temporary in nature or they acquired a permanent status in the Constitution at the end of the J&K Constituent Assembly’s tenure in 1957.
In his verdict, Justice Chandrachud said Article 370 was introduced to serve two purposes.
“First, 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 IoA (Instrument of Accession), and ratify the Constitution (the transitional purpose);
“And second, an interim arrangement because of the special circumstances in the state because of the war conditions of the State (the temporary purpose),” he noted.
The CJI said there are intrinsic reasons in Article 370 that support the view that the provision was not intended by the framers to be a permanent feature of the Constitution at the date of the adoption of the Constitution.
“Part XXI of which Article 370 is a part specifies temporary and transitional provisions. In certain cases, the temporary provisions contained in Part XXI had a restriction with reference to the time over which they would operate,” he said.
He said Article 370 was couched amidst other temporary and transitional provisions with a marginal note which indicates that its provisions were temporary.
“On January 26, 1950, when the Constitution was adopted, the state of Jammu and Kashmir became an integral part of the territory of India. The mandate of Article 1 is that ‘India that is Bharat shall be a Union of States’,” the CJI noted.
“Any interpretation of Article 370 cannot postulate that the integration of Jammu and Kashmir with India was temporary,” he said.
In his separate verdict, Justice Sanjay Kishan Kaul said Article 370 contemplated the mechanism for extending the Parliament’s law-making power and the various provisions of the Constitution of India to the state, which showed that Article 370 was meant to gradually bring the state on par with other states in this process of phased integration.
“A combination of factors, such as Article 370’s historical context, its text, and its subsequent practice, indicate that Article 370 was intended to be a temporary provision,” he said in his 121-page concurring judgement.
He noted that the Instruments of Accession signed by the various erstwhile princely states were to be reflected in the Constitution of India itself.
“However, insofar as Jammu and Kashmir state was concerned, Article 370 was a special procedure contemplated due to the ‘special conditions’ in the state and hope was expressed that in times to come, ‘Jammu & Kashmir will become ripe for the same sort of integration as had taken place in the other States’,” Justice Kaul said.
“Thus, the intent was clear: of complete integration but taking place over a period of time. Article 370 was envisaged as an interim system till the State’s Constituent Assembly came into being and for a limited period, on account of the special circumstances of the state,” he said.
Justice Kaul said the provision was placed in Part XXI, which was titled ‘Temporary and Transitional Provisions’ at the time.
The marginal note to the provision was titled ‘Temporary Provisions with respect to the State of Jammu and Kashmir’, he noted.
In his separate verdict, Justice Khanna said the judgment penned by the CJI was scholarly and it elaborately annotates the complex legal issues.
He said the judgment authored by Justice Kaul pragmatically demystifies the factual and legal position.
“Both judgments are in seriatim and uniformly agree that Article 370 of the Constitution of India was a feature of asymmetric federalism and not sovereignty. Article 370 was enacted as a transitional provision and did not have permanent character,” Justice Khanna said.
The Supreme Court also ruled the former state of Jammu and Kashmir did not have any ‘internal sovereignty’ that was distinguishable from the powers and privileges enjoyed by other states in the country.
A five-judge bench headed by Chief Justice DY Chandrachud said while there was a clear absence in the Constitution of Jammu and Kashmir of a reference to sovereignty, in contrast, the Constitution of India emphasises in its Preamble that the people have resolved to constitute India into a sovereign, socialistic, secular, democratic republic.
“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,” it said.
The bench, also comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant, said that all states in the country have legislative and executive power albeit to differing degrees.
“The Constitution accommodates concerns specific to a particular State by providing for arrangements which are specific to that State. Articles 371A to 371J are examples of special arrangements for different States. This is a feature of asymmetric federalism, like Article 370 which became applicable to Jammu and Kashmir on the adoption of the Constitution,” the bench said.
CJI Chandrachud said, in asymmetric federalism, a particular state may enjoy a degree of autonomy which another state does not.
“The difference, however, remains one of degree and not of kind. Different states may enjoy different benefits under the federal setup but the common thread is federalism,” it said.
The bench said the Instrument of Accession (IoA) executed by Maharaja Hari Singh in 1947 provided that nothing in it would affect the continuance of the sovereignty of the Maharaja in and over the State.
“On November 25, 1949, a proclamation was issued for the State of Jammu and Kashmir by Yuvraj Karan Singh. The declaration in this Proclamation that the Constitution of India would not only supersede all other constitutional provisions in the State which were inconsistent with it but also abrogate them achieves what would have been attained by an agreement of merger,” the bench said.
It added that 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. 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 relationship was already defined by the IoA, the Proclamation issued by Yuvraj Karan Singh in November 1949 and more importantly, by the Constitution of India,” it said.
The top court said residual legislative powers cannot be equated to residual sovereignty as it reflects the value of federalism and the federal underpinnings of the Constitution of India.
“Neither Parliament nor any of the States have the unrestricted power to make laws. Each has its own sphere of legislation, as demarcated by the three lists in the Seventh Schedule to the Constitution. Each is supreme in its own sphere. The States have the plenary power to enact laws but this alone cannot be taken as a sign of sovereignty of individual States,” it said.
The bench said it is true that many commentators refer to these aspects of federalism as ‘internal sovereignty’ but by whatever name so called, it is clear that all states in the country have legislative and executive power albeit to differing degrees.
“If the position that Jammu and Kashmir has sovereignty by virtue of Article 370 were to be accepted, it would follow that other States which had special arrangements with the Union also possessed sovereignty. This is clearly not the case,” the bench said.
It said the people of Jammu and Kashmir, therefore, do not exercise sovereignty in a manner which is distinct from the way in which the people of other states exercise their sovereignty. (PTI)
Highlights
* CJI D Y Chandrachud, Justice Sanjay Kishan Kaul and Justice Sanjiv Khanna wrote separate concurring verdicts.
* SC held that Article 370 was a “temporary provision”.
* CJI Chandrachud, writing for himself and Justices B R Gavai and Surya Kant, 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.
* SC said restoration of Statehood of Jammu and Kashmir shall take place at the earliest and as soon as possible.
* SC directed Election Commission to take steps to conduct elections to the Legislative Assembly of Jammu and Kashmir by September 30, 2024.
* SC upheld the validity of the decision to carve out the Union Territory of Ladakh.
* SC said the President has the power to issue a notification declaring that Article 370(3) ceases to operate without the recommendation of the Constituent Assembly.
* SC said Article 370 was a feature of asymmetric federalism and not sovereignty.
* CJI Chandrachud said any interpretation of Article 370 cannot postulate that the integration of Jammu and Kashmir with India was temporary.
* Justice Kaul recommended setting up an “impartial truth and reconciliation commission” to probe and report on human rights violations by both State and non-state actors in Jammu and Kashmir since the 1980s, saying the “wounds need healing”.
* It was not a “voluntary migration”, Justice Kaul said while referring to the “troubled situation” at the ground level in the Kashmir valley in the 1980s which triggered the exodus of Kashmiri Pandits.
* Justice Kaul said the mass exodus of the Kashmiri Pandit community changed the very cultural ethos of Kashmir and there has been little turn back despite three decades having gone by since it was triggered by growing fundamentalism fuelled from across the border.
* SC said though democracy and federalism are basic features of the Constitution, there are certain “unitary” characteristics in the Constitutional structure which provide overriding powers to the Centre, including the formation of Union Territories. (PTI)
Timeline of developments
* December 20, 2018: President’s Rule imposed while exercising powers under Article 356 of the Constitution in the State of Jammu and Kashmir. Subsequently extended on July 3, 2019.
* August 5, 2019: Centre abrogates the provisions of Article 370, bestowing a special status upon the erstwhile State of Jammu and Kashmir.
* August 6, 2019: First petition challenging the Presidential order scrapping Article 370 filed by advocate M L Sharma, who was later joined by another lawyer from Jammu and Kashmir, Shakir Shabir.
* August 10, 2019: National Conference (NC), a prominent political party from Jammu and Kashmir, files a petition contending that the changes brought in the status of the State had taken away the rights of its citizens without their mandate.
* August 24, 2019: Press Council of India moves the Supreme Court supporting the Centre and Jammu and Kashmir administration’s decision to impose restrictions on communications.
* August 28, 2019: Supreme Court issues notices to the Centre, Jammu and Kashmir administration on a plea moved by Kashmir Times editor for the removal of the restrictions imposed on journalists.
* August 28, 2019: A bench headed by then Chief Justice Ranjan Gogoi refers matter to five-judge Constitution bench.
* September 19, 2019: Supreme Court sets up five-judge Constitution bench to hear pleas challenging abrogation of Article 370.
* March 2, 2020: Supreme Court declines to refer to larger seven-judge bench batch of petitions challenging constitutional validity of Centre’s decision to abrogate provisions of Article 370.
* April 25, 2022: Supreme Court agrees to consider listing after summer vacation pleas challenging Centre’s decision to abrogate provisions of Article 370 after one of the petitioners seeks urgent hearing in view of delimitation exercise being carried out in Jammu and Kashmir.
* July 11, 2023: Supreme Court says it will commence day-to-day hearing from August 2 on petitions challenging abrogation of Article 370.
* August 2, 2023: Supreme Court commences hearing on petitions challenging abrogation of Article 370.
* September 5, 2023: Court reserves verdict on 23 petitions in the matter after hearing those for 16 days.
* December 11, 2023: Supreme Court upholds Government’s decision to abrogate Article 370, says steps should be taken to conduct election to Assembly in Union Territory by September 30 next year. (PTI)
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