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Supreme Court upholds scrapping of Article 370, says it culminated process of J&K integration
The Supreme Court declared the abrogation to be a perfectly valid exercise of power by the President, ruling that Article 370 was meant to be a temporary provision
New Delhi
A Constitution bench of the Supreme Court on Monday unanimously endorsed the Union government’s August 2019 decision to abrogate Article 370, which granted special status to Jammu & Kashmir, calling the move the “culmination of the process of integration” of the erstwhile state into the Union of India.
The bench, comprising Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justices Sanjay Kishan Kaul, Sanjiv Khanna, Bhushan R Gavai and Surya Kant, further directed the Election Commission of India to conduct polls to the J&K legislative assembly by September 30, 2024, and asked the Centre to restore statehood to the region “as soon as possible”.
In a historic decision that ends a chapter that started with the ascension of Jammu & Kashmir to India in 1947 at a time when the region’s political future was uncertain, the judges declared the abrogation to be a perfectly valid exercise of power by the President, ruling that Article 370 was always meant to be a temporary provision.
The judges were also in unison about the validity of the two constitutional orders (COs) issued in August 2019 by the President in applying all provisions of the Indian Constitution to J&K and the cession of Article 370, declaring that the President was not required to obtain the approval of the J&K constituent assembly (which was dissolved in 1957) or the J&K legislative assembly before notifying under Article 370 that “this article shall cease to be operative”.
“The declaration issued by the President in exercise of the power under Article 370(3) is a culmination of the process of integration. Thus, we do not find that the President’s exercise of power under Article 370(3) was mala fide,” held the court.
Prime Minister Narendra Modi said the judgment fortified India’s “essence of unity”.
“It is a resounding declaration of hope, progress and unity for our sisters and brothers in Jammu, Kashmir and Ladakh. The court, in its profound wisdom, has fortified the very essence of unity that we, as Indians, hold dear and cherish above all else,” he said in a post on X (formerly Twitter).
The top court chose not to give a ruling on whether the reorganisation of the state of J&K into two Union territories of Ladakh and J&K was constitutionally permissible, pointing at the Centre’s statement that statehood of J&K would be restored eventually. “This court is alive to the security concerns in the territory. Direct elections to the legislative assemblies, which is one of the paramount features of representative democracy in India, cannot be put on hold until statehood is restored,” held the bench, directing ECI hold elections in J&K by September.
It maintained that the abrogation of Article 370 was a “policy decision” and “completely falls within the realm of the executive” to assess whether there existed special circumstances necessitating a special solution in the form of the abrogation. “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,” said the bench.
The verdict is a shot in the arm for the Union government and the Bharatiya Janata Party (BJP), which has in several election manifestos, including the one in 2019, promised to annul Article 370 and formalised its decision through two COs issued on August 5 and 6, 2019 after storming back to power in May that year.
Union home minister Amit Shah welcomed the verdict.
“On August 5, 2019, PM Narendra Modi took a visionary decision to abrogate Article 370. Since then peace and normalcy have returned to J&K,” he said on X.
The Congress demanded immediate elections in the Union territory and called for its statehood to be restored.
“Full statehood must be restored immediately. The aspirations of people of Ladakh must also be fulfilled. We welcome the SC direction to hold assembly elections. However, we believe elections should be held immediately and there is no reason to wait till September 30, 2024,” senior Congress leader P Chidambaram said.
Two judgments and a synopsis
Though the views of the bench on abrogation of Article 370 through presidential orders were unanimous, CJI Chandrachud and justices Kaul penned separate judgments, addressing different aspects of the matter, while justice Khanna authored a three-page synopsis recording his conclusions and his agreement with the two judgments authored by his senior colleagues on the bench.
The CJI’s judgment, which he authored for himself and justices Gavai and Kant, dwelled on the finer points of the constitutional and legal interpretation of the provisions called into questions by a group of petitioners that included parliamentarians from the National Conference, Kashmiri citizens, former bureaucrats and various organisations.
Justice Kaul, in his judgment, implored the Centre to set up a “Truth and Reconciliation Commission” for a structural investigation into violation of human rights in J&K by both State and non-State actors, and lay down a framework for restoration of social fabric, coexistence and reconciliation.
He also differed with the majority view on retention of “internal sovereignty” by J&K despite Maharaja Hari Singh signing the Instrument of Accession in October 1947. While the CJI and three other judges held that Article 370 was a feature of “asymmetric federalism and not sovereignty”, justice Kaul went by a previous five-judge bench decision in the Prem Nath Kaul case (1969)to maintain that Article 370 recognised this “internal sovereignty by recognising the constituent assembly of the state”. However, justice Kaul agreed with the other judges that Article 370 was a temporary arrangement and thus, the internal sovereignty of the state could be derecognised by the presidential orders.
Reading out the first verdict in the case, CJI Chandrachud enumerated some key issues for determination — the nature of Article 370, sovereignty of J&K, exercise of President’s power during the imposition of emergency, use of Article 370 to abrogate itself, bifurcation of J&K into two UTs of J&K and Ladakh —as the prime issues ruled upon in his judgment.
“Article 370 is a temporary provision on a reading of the historical context in which it was included. 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 in view of the special circumstances because of the war conditions in the state,” stated the judgment, rejecting the petitioner’s case that the provision has assumed permanence with the passage of time.
The unanimous view maintained that the J&K did not retain an element of sovereignty when it joined the Union of India in terms of the Instrument of Accession. “Neither the constitutional setup nor any other factors indicate that the state of J&K retained an element of sovereignty. The Constitution of J&K was only to further define the relationship between the Union of India and the state of J&K...the State is subordinate to the Indian Constitution first and only then to its own Constitution,” it added.
Upholding key decisions
The court held that the exercise of the power by the President to issue COs 272 and 273 were valid to the extent it applied all provisions of the Indian Constitution to J&K, thereby virtually effacing Article 370, even as it struck down that part of CO 272 which amended Article 370 to substitute “Constituent Assembly” with “Legislative Assembly” calling it to be ultra vires.
“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 declaration issued by the President under Article 370(3) is a culmination of the process of integration and as such is a valid exercise of power. Thus, CO 273 is valid,” it said.
The judgment declared that the Parliament’s exercise of power under Article 3 to bifurcate J&K “was valid and not mala fide” though it refrained from testing the legality of the decision to carve out two UTs from the erstwhile state.
In view of S-G Tushar Mehta’s statement that the statehood of J&K will be restored, the court said, it is not necessary to determine for the time being whether a state can be reduced into two or more UTs.
Following a marathon hearing spanning 16 days, the bench had on September 5 reserved its verdict in the matter. The hearing in the case had commenced on August 2 after a hiatus of over three years, with its last listing dating back to March 2020 when another five-judge bench had declined to refer the matter to a larger bench.
Senior advocate Kapil Sibal spearheaded the legal submissions on behalf of the petitioners in the case, followed by a strong line-up of other senior counsels, including Gopal Subramanian, Rajeev Dhavan, Dushyant Dave, Zafar Shah, CU Singh and Gopal Sankaranarayanan.
Attorney general R Venkataramani and Mehta represented the Centre in the matter. Senior advocates Harish Salve, Rakesh Dwivedi, Mahesh Jethmalani and V Giri supported the Centre on behalf of some of the other respondents in the case.
Former J&K chief minister and National Conference vice-president Omar Abdullah, in a post on X said: “Disappointed but not disheartened. The struggle will continue,” he said.
Peoples Democratic Party (PDP) chief Mehbooba Mufti described the verdict as a “death sentence”.
She urged people not to lose hope, emphasising that the struggle in the region has been a political fight spanning decades.
