In a landmark verdict, a five-judge constitution bench of the Supreme Court led by Chief Justice of India (CJI) DY Chandrachud unanimously upheld the presidential order to abrogate Article 370 of the Constitution. Referring to Article 370 as a “temporary provision”, the bench said it was enacted due to wartime conditions in the state and was meant to serve a provisional purpose. The court also held that Jammu and Kashmir does not hold any internal sovereignty after its accession to the Union of India. The abrogation ended the special status conferred to Jammu and Kashmir, which was bifurcated into two Union Territories.
Earlier, the Supreme Court had reserved its verdict on 23 petitions on September 5, after 16 days of marathon hearings. There were three judgments, one by the CJI Chief Justice, Justices BR Gavai and Surya Kant. There was a concurring opinion authored by Justice Sanjay Kishan Kaul while Justice Sanjiv Khanna agreed with both the judges.
Here is an analysis of some major points raised in the court.
J&K’s Sovereignty
“The proclamation of the Maharaja stated that the Constitution of India will supersede,” the Supreme Court said. The judges said though Maharaja Hari Singh, the former 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. This is how the merger of every princely state took place in India, the top court said. With this, it emphatically concluded that J&K has always been an integral part of India. Chief Justice Chandrachud cited Section 3 of the J&K Constitution, apart from Article 1 and 370 of the Indian Constitution.
Article 3 of the J&K Constitution reads, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India.” It adds that Article 370 is a feature of ‘asymmetric federalism’ and not sovereignty.
Atmaram N S Nadkarni, senior advocate, said the Supreme Court judgment reaffirms the sovereignty, integrity and unity of India. “After accession, J&K has lost all sovereignty and the Indian Constitution is fully applicable. The issue has been settled for all times. Every individual has a right to have his or her own view backed with their respective ideology but that does not mean the law can follow every such strange opinion, rather it is only and only the verdict of the apex court that will hold the field,” says Mr Nadkarni.
Article 370 Was A Temporary Provision
Chief Justice Chandrachud had a documented line and gave examples in the historical context for the inclusion of Article 370 and its placement in Part XXI of the Constitution dealing with temporary provisions. The Chief Justice said Article 370 was a transitory and a temporary provision historically. Since the constituent assembly no longer exists, the special condition for which 370 was introduced was also deemed to not exist. Therefore, the power under Article 370(3) ceases to exist after the dissolution of the J&K Constituent Assembly.
Concurrence of State Government Not Required
The Supreme Court stated that the presidential power in a state was valid and held that consultation and collaboration was not required to exercise this power and the concurrence of the state government was not required to apply all provisions of the Constitution using Article 370(1)(d). Thus, the President taking the concurrence of the Union Government was not mala fide and the views of the state legislature under Article 3 proviso was merely for reference. “Supreme Court noted that they do not find the President’s power to abrogate Article 370 as mala fide. Exercise of power by the President to abrogate Article 370 is a valid exercise of power. This should set at rest any or all controversy regarding the abrogation and special status issue. Once the apex court of the country holds in its judicial dictum laying down the law, all need to respect the verdict and follow the same,” says Mr Nadkarni.
Decision Of The Centre Can’t Be Challenged
The Supreme Court said every decision taken by the Union on behalf of the state during President’s Rule is not open to challenge. The court rejected the argument of petitioners that the Union cannot take actions of irreversible consequences when the state is under President’s Rule. “The words of Article 356 make it clear that any action taken pursuant to the proclamation of President’s Rule must have a reasonable nexus with the object of the proclamation. Any action lacking such a nexus would be unconstitutional,” says Arun Bhardwaj, senior advocate, Supreme Court.
On President’s 370 Order
The Supreme Court upheld Constitutional Order 272 issued by the President on August 5, 2019 to the extent it made provisions of the Constitution of India applicable to J&K. The President through the order amended Article 367 so that references to the ‘Constituent Assembly’ in Article 370(3) were re-interpreted to mean ‘Legislative Assembly’. Based on this change, the President issued another Constitutional Order abrogating Article 370. The court said that the President was empowered to do so. Mr Bhardwaj says: “Though Article 370(3) requires a ‘recommendation’ from the Constituent Assembly of J&K before the President abrogates Article 370, such a recommendation is not binding on the President. Therefore, even the absence of such a recommendation is not fatal to the order, and the President had the power to issue a notification abrogating Article 370 in the manner that he has done.”
Restoration Of Statehood And Elections
The top court said the reorganisation of the former state into Union Territories in 2019 was a temporary move. However, it upheld the carving out of Ladakh as a Union Territory. It ordered the Centre to restore statehood and called for elections by September 2024. “Restoration of Statehood and holding of elections is also a welcome direction in order to strengthen democratic process and restore people’s power back to the state. Obviously, no part of the country, more so a federating uni,t can be operated or run as a Centrally Administered Area,” says Mr Nadkarni.
The judgment is historic and may pave the way to resolving complex political and legal issues within constitutional parameters.
(Bharti Mishra Nath is a senior journalist)
Disclaimer: These are the personal opinions of the author
