New Delhi: A five-judge bench of the Supreme Court unanimously upheld the abrogation of Article 370, which bestowed special status on the erstwhile state of Jammu and Kashmir, Monday.
The bench said the President had the power to issue notification declaring that Article 370 ceases to operate without a recommendation of the J&K Constituent Assembly. “It is a culmination of the integration process,” the bench said.
Thought it refrained from determining the validity of the Jammu and Kashmir Reorganisation Act, 2019, which bifurcated the state into two Union territories, in view of the statement given by solicitor general Tushar Mehta (during the hearing) that statehood would be restored and the UT status was temporary, it upheld the creation of Ladakh as UT as Article 3 of the Constitution allows a portion of the state to be made a UT.
The bench also directed the Election Commission of India (ECI) to hold polls in J&K before 30 September, 2024, and said statehood should be restored soon.
“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,” the bench said. “We direct that steps shall be taken by the Election Commission of India to conduct elections to the legislative assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by 30 September 2024.”
The majority view was authored by Chief Justice of India D.Y. Chandrachud, who wrote on behalf of justices B.R. Gavai and Surya Kant. Justices Sanjay Kishan Kaul and Sanjiv Khanna wrote their respective concurrent views.
The judgment was delivered on a batch of petitions filed in August 2019, soon after the government abrogated Article 370, virtually rendering it an ineffective provision of the Constitution.
The court also refused to decide upon the petitioners’ demand to set aside the Presidential Rule, observing that they did not make a specific challenge to the same in their petitions. President’s Rule in J&K was followed by multiple notifications that abrogated 370 and divided the erstwhile state into two UTs.
The other points on which the constitution bench gave a unanimous verdict are — the state of J&K does not retain any element of sovereignty or internal sovereignty. The bench said that Article 370 in the Constitution was a feature of asymmetric federalism and not sovereignty.
Though the bench did not adjudicate upon the President’s rule and its extension in J&K, it said the exercise of President’s power after the proclamation is subject to judicial review.
“The exercise of power by the President must have a reasonable nexus with the object of the
Proclamation. The person challenging the exercise of power must prima facie establish that it is a mala fide or extraneous exercise of power,” the bench said.
With regard to the case before it, the bench said Power of Parliament under Article 356(1) (when a state is under President’s Rule) to exercise powers on behalf of the State assembly is not restricted to law making powers.
According to the bench, Article 370 is a temporary provision and power of the President under Article 370(3) did not cease after the J&K Constituent assembly ceased to exist.
“The power under Article 370(3) did not cease to exist upon the dissolution of the Constituent Assembly of Jammu and Kashmir. When the Constituent Assembly was dissolved, only the transitional power recognised in the proviso to Article 370(3) which empowered the Constituent Assembly to make its recommendations ceased to exist. It did not affect the power held by the President under Article 370(3),” the bench said, rejecting the petitioners’ argument that abrogation of Article 370 couldn’t be done in the absence of a Constituent Assembly.
It declared that the exercise of power by the President under 370(1)(d) is not mala fide and that state’s concurrence before acting upon this power was not needed. The President, it said, can unilaterally issue a notification to say Article 379 ceases to operate.
It also went on to uphold the notification which declared that the Constitution of India would apply to J&K and held its constitution as redundant.
On the petitioners’ argument that state legislature’s views under Article 3 were required before the state’s bifurcation, the bench said the opinion is recommendatory in nature. However, the bench declared the notification that amended Article 367 to substitute the term constituent assembly in proviso 3 of Article 370 by state legislative assembly as ultra vires, or as beyond one’s legal power or authority.
Article 370 gave special privileges to Jammu and Kashmir (J&K), which following the abrogation was bifurcated into two Union Territories, J&K and Ladakh — with Ladakh being the UT with an assembly session.
The bench had reserved its verdict in the matter on 5 September after hearing it for 16 days.
The moot legal question that was argued before the court focused on the procedure adopted to repeal the Article and the abolition of statehood of Jammu and Kashmir.
The Modi government defended its move to abrogate, arguing it was necessary to completely integrate J&K into the Union of India. It submitted data to project the valley’s prosperity in the last four-and-half-years following the bifurcation.
The central government also promised the court that it would hold elections, which are due there, and soon revert to full statehood once the situation on the ground returned to normal. However, it did not promise any timeline for restoring its statehood.
The petitioners, however, assailed the impugned notifications put the state under the President’s Rule and then abrogated the Article. The procedure adopted by the government, they said, was an attack on federalism and a fraud played on the Constitution.
This was because, before the two notifications, the Bharatiya Janata Party (BJP) had first withdrawn its support to the then-ruling dispensation in J&K, and then the central government had dissolved the assembly there, the petitioners said.
Proclamation of the President’s Rule
The J&K state legislative assembly was dissolved by the Governor under Section 53(2) of the Jammu and Kashmir Constitution on 21 November, 2018.
The proclamation of the President’s Rule under Article 356 was issued a month later and Parliament had approved of this proclamation on 3 January, 2019. The President’s Rule was extended for six months with effect from 3 July, 2019.
On 5 August, 2019, the President issued the order, which inserted a new provision, Article 367(4) in the Constitution that replaced the expression “Constituent Assembly of the State” in Article 370(3) with “Legislative Assembly of the State”.
The same day Parliament abrogated Article 370 and passed the Bill to reorganise J&K. The next day the President declared that Article 370 ceased to apply.
The petitioners contended that the Union used its “brute majority” in Parliament, and through a series of executive orders issued by the President, divided a full-fledged state into the UTs of J&K and Ladakh.
According to the petitioners, Article 370 had assumed a permanent character as soon as the J&K constituent assembly dissolved in 1957 after the framing of the state Constitution.
Hence, the power of Parliament to amend did not apply to Article 370, and only the constituent assembly could have given its concurrence to recommend revoking Article 370 there, the petitioners added.
Meanwhile, the central government denied there was “constitutional fraud” in annulling the provision. It argued that Article 370 was a temporary provision and that the government has no intention of changing special provisions in the Constitution applicable to the country’s northeastern states.
This report has been updated with additional information
(Edited by Richa Mishra)