Breaking down the Supreme Court judgment on J&K, and its wider implications | Latest News India - Hindustan Times
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Breaking down the Supreme Court judgment on J&K, and its wider implications

Dec 12, 2023 07:36 AM IST

The judgment on dwelled on historical treaties, interpretation of constitutional & legal provisions, procedural proprieties, & principles of sovereignty

The Constitution bench verdict on the abrogation of Article 370 on Monday settled a spectrum of legal issues rendered complex by historical and political context, and is nuanced by the idea of “complete integration” of Jammu & Kashmir into India’s constitutional scheme.

India's top court on December 11 upheld a move by Prime Minister Narendra Modi's government to revoke the limited autonomy of Muslim-majority Kashmir. (AFP)
India's top court on December 11 upheld a move by Prime Minister Narendra Modi's government to revoke the limited autonomy of Muslim-majority Kashmir. (AFP)

The 476-page judgment on 23 petitions dwelled on historical treaties, interpretation of constitutional and legal provisions, procedural proprieties, and principles of sovereignty before authoritatively defining the contours of the contentious provision.

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The five-judge bench, comprising Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R Gavai and Surya Kant, were unanimous in affirming the abrogation of Article 370, holding the provision to be temporary and agreeing that the President has the power to nullify the special status of J&K under special circumstances that, the court held, were exclusively within the domain of the political executive to best judge.

Read Here: What does Supreme Court judgment mean for Jammu & Kashmir?

A look at the key issues raised for and against the Centre’s August 2019 move, and the answers rendered by the Constitution bench, impart an insight into the journey of judicial determination.

Article 370: Permanent or temporary?

The plank of the petitioner’s submissions before the court remained that Article 370 had attained a permanent status in the Indian Constitution. They contended that it was an embodiment of a constitutional promise given by the Dominion of India to the erstwhile princely state of its unique status despite its accession in October 1947. With the dissolution of the constituent assembly of J&K on January 26, 1957, the petitioners argued, Article 370 assumed the status of a permanent provision which could not be nullified by the President.

The court rejected this argument, as it found favour with the Centre’s submissions that Article 370 was a transient and temporary provision that worked as a mechanism to gradually bring J&K on par with other states by applying various provisions of the Constitution of India in a step-by-step fashion, and that this exercise was completed through the abrogation.

“Article 370 prevented residents of J&K from being treated on par with other citizens of India. Ultimately equality was the necessity. Thus, it could never have been intended to be a permanent arrangement,” said justice Kaul’s judgment, also highlighting that the provision was placed in Part XXI of the Constitution that itself is titled “Temporary and Transitional provisions”.

Article 370 abrogation in J-K constitutionally valid: Supreme Court backs Centre in landmark verdict

The CJI’s judgment, on behalf of himself and justices Gavai and Kant, also maintained in its concurring verdict that 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 (transitional purpose); and second, an interim arrangement because of the special circumstances due to war-like conditions of the state (temporary purpose)”.

The 1947 Instrument of Accession and internal sovereignty of J&K

The petitioners raised the text of the IoA, emphasising that Maharaja Hari Singh retained internal sovereignty for the erstwhile state by not signing a merger agreement like other princely states. The fact that J&K had its own constitution and that Article 370 was drafted as per the terms in the IoA were testaments of the historical promises made to the residents of J&K about their internal sovereignty.

By 4-1, the bench held that Article 370 was a feature of asymmetric federalism, not sovereignty. “The state of Jammu & Kashmir does not retain any element of sovereignty after the execution of the IoA and the issuance of the proclamation dated 25 November 1949 by which the Constitution of India was adopted. The state of Jammu & Kashmir does not have ‘internal sovereignty’ which is distinguishable from the powers and privileges enjoyed by other States in the country,” stated the judgment authored by the CJI.

The people of J&K, it held, do not exercise sovereignty in a manner which is distinct from the way in which the people of other states exercise theirs.

In his dissent on this point, justice Kaul, however, followed a finding by another five-judge bench in Prem Nath Kaul case (1969), which had said that J&K did not lose all semblance of its internal sovereignty – which included deciding upon the form of government of the state - upon signing the IoA.

Read Here | PM Modi reacts to Supreme Court verdict on Article 370 abrogation: ‘Historic, beacon of hope…’

“In light of this Court’s prior finding in Prem Nath Kaul, the state of Jammu & Kashmir retained an element of internal sovereignty despite Maharaja Hari Singh signing the IoA with the Dominion. Article 370 of the Constitution recognized this internal sovereignty by recognizing the Constituent Assembly of the state,” held justice Kaul.

Constitutional validity of Governor’s Rule and President’s Rule

On June 19, 2018, Mehbooba Mufti resigned as chief minister after the BJP withdrew from the alliance with the J&K Peoples’ Democratic Party. On the next day, the J&K governor with the approval of the President imposed Governor’s Rule in the state under Section 92 of the J&K constitution, which permitted proclamation only for a maximum period of six months. As the Governor’s Rule would have come to an end on December 19, 2018, the President issued a six-month proclamation under Article 356 on the same day, which was later extended by the same period in June 2019. When the proclamation was in the force, the President issued constitutional orders (COs) 272 and 273 by which Article 370 and the special constitutional status of J&K was in effect repealed.

During the marathon hearing of the case in August and September, the petitioners argued against the validity of the proclamations issued under Section 92 of the J&K constitution to first impose Governor’s Rule and subsequently under Article 356 of the Constitution of India to impose President’s Rule.

But the bench turned down this challenge, saying it did not merit adjudication because the principal challenge by the petitioners pertained to actions taken during the subsistence of President’s Rule and not independently to President’s Rule by itself.

Read Here | Supreme Court’s Article 370 verdict: A guide to key questions, arguments

“Even if this court holds that the proclamation could not have been issued under Article 356, there would be no material relief which can be given in view of the fact that it was revoked on October 31, 2019... The petitioners have assailed the specific actions which were taken when the proclamation was in force on the ground that these actions breach the constitutional limitations on the exercise of power after a proclamation under Article 356 is issued,” it held.

Validity of COs 272 and 273 and the need for consultation with the J&K assembly

After having held that J&K did not have any independent sovereignty, the court dealt with the power of the President to issue the two COs during President’s Rule in J&K. While the petitioners argued that the Union government cannot take actions which have irreversible consequences, the top court held that there are no fetters to the exercise of constitutional, legislative or executive powers during President’s Rule.

Although the exercise of power after a proclamation under Article 356 is issued is subject to judicial review on the grounds of mala fide or extraneous considerations, the court said, every decision and action taken by the Union executive on behalf of the state is not subject to challenge because it would lead to chaos and uncertainty while putting the state administration at a standstill.

Going forward, the bench dealt with the challenge to Constitution orders (COs) 272 and 273 on merits. Through CO 272, Parliament brought in a new clause under Article 367 to state that the “constituent assembly” of J&K would now mean “legislative assembly” of J&K under Article 370. This was a precursor to Parliament assuming the powers of J&K legislative assembly in August 2019 and granting its approval for the nullification of Article 370, which otherwise required a recommendation of the constituent assembly of J&K. CO 272 also extended all parts of the Indian Constitution to J&K, which had its own Constitution.

The Constitution bench affirmed the CO to the extent that it applied all provisions of the Constitution to J&K in one go on the ground that a subclause in Article 370 itself empowered the President to apply any or all provisions of the Indian Constitution to J&K but it declared the second part of the CO to be ultra vires because it amended Article 370 by taking recourse to Article 367.

Read Here | 'Disagree': Congress differs with SC, says Article 370 'deserved to be honoured'

But this procedural impropriety had no impact on the final outcome because the court noted that the effect of applying all provisions of the Indian Constitution to J&K in effect meant abrogation of Article 370 which carved out special provisions. At the same time, the bench held that held that the President seeking the concurrence of the Union government instead of the government of the state to issue CO 272 was “not invalid”, and that the principle of consultation and collaboration were not required to be followed because the consultation was a must only if the J&K constitution was to be modified.

“The exercise of power is mala fide only if power was exercised with an intent to deceive. Deception can only be proved if the power which is otherwise unavailable to the authority or body is exercised or if the power that is available is improperly exercised. Since the concurrence of the state government was not required for the exercise of power under Article 370(1)(d) to apply all provisions of the constitution to the state, the President securing the concurrence of the Union of India (on behalf of the state government) is not mala fide,” it held.

The bench upheld CO 273 noting that the power of the President to issue a notification declaring that Article 370 ceases to exist subsists even after the dissolution of the J&K constituent assembly. It highlighted that Article 370 uses the word “recommendation” of the constituent assembly, which means that this was not binding on the President, besides the fact that the dissolution of the constituent assembly would not mean that Article 370 cannot be abrogated at all.

Challenge to the 2019 Reorganisation Act and bifurcation of J&K into two Union territories

Following the presidential assent on August 9, 2019, the Act reorganised the state of J&K into two UTs — Ladakh without a legislature and J&K with a legislature.

The petitioners assailed the Act on the substantive grounds, arguing that Article 3 does not empower Parliament to extinguish the character of a state in its entirety nor were the views of J&K taken before its division into two UTs.

The court upheld the validity of the decision to carve out the UT of Ladakh under Article 3(a) that permits forming a UT by separation of a territory from any state even as it refrained from rendering a decision on whether a state can be divided into two UTs. Citing solicitor general Tushar Mehta’s submissions on behalf of the Centre, the court recorded that statehood of J&K should be restored “at the earliest and as soon as possible”.

Read Here | ‘I can’t explain to them': Shah slams Cong on Supreme Court's Article 370 verdict

“In view of the submission made by the solicitor general that statehood would be restored of Jammu & Kashmir, 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,” it said.

Deciding the procedural challenge to the Reorganisation Act, the bench went by a five-judge bench decision in Babulal Parate Vs State of Bombay (1960), which held that the views expressed by the state legislature under the proviso to Article 3 are not binding on Parliament. The proviso to Article 3 lays down that where the proposal contained in a reorganisation bill affects the area, boundaries or name of any of the states, such bill has to be referred by the President to the state legislature for expressing its views.

As the views of the state legislature are not binding on Parliament, the court said, there was no scope for a debate whether the President was right in obtaining the views of Parliament instead of seeking the view of the state legislature. “The views of the legislature of the state under the first proviso to Article 3 are recommendatory to begin with. Thus, Parliament’s exercise of power under the first proviso to Article 3 is valid and not mala fide,” it held.

The extensive judgment by the Supreme Court ostensibly tries to provide a closure in law to an issue that has persistently triggered fierce and emotive debates, both inside and outside courts. Justice Kaul’s epilogue adds a human touch and reflects an honest reckoning of the sufferings of the J&K residents, especially Kashmiri Pandits who were forced to flee their homeland due to insurgency and militancy. The theme that runs through the Supreme Court judgment is complete integration of J&K with the Union of India but only the time will tell if the ideas of social and political reconciliation will meet the complex mix of challenges that the Valley faces.

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