New Delhi: Upholding the President’s unilateral power to dilute the special status accorded to the erstwhile state of Jammu and Kashmir under Article 370, the Supreme Court Monday ruled that there was no malafide intention in declaring the provision inoperative.
A Constitution bench led by Chief Justice of India D.Y. Chandrachud declared that the abrogation of Article 370 in August 2019 was a “culmination of the process of integration” of J&K with the Union.
“The slew of Constitutional orders issued by the President under Article 370(1)(d) applying various provisions of the Constitution and applying provisions with modification indicate that over the course of the last 70 years, the Union and the State have through a collaborative exercise constitutionally integrated the State with the Union,” said the bench, also comprising Justices S.K Kaul, Sanjiv Khanna, B.R. Gavai and Surya Kant.
Article 370(1)(d) relates to the application of the Constitution to the states.
This, the bench said, indicated that a gradual process of constitutional integration was ongoing.
It refused to entertain the request of petitioners to decide if there were special circumstances that warranted the President to exercise the power under Article 370(3) to declare that the Article 370 ceased to operate.
‘Policy decision falls within executive’s realm’
“This is a policy decision which completely falls within the realm of the executive. 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,” the bench said.
The decision, it added, is not beyond the scope of judicial review and can be challenged on the ground of malafide, which was not in the present case.
The verdict came on petitions challenging the constitutional validity of two presidential orders that abrogated Article 370, interpreted Article 367 to read the Constituent Assembly as the State Legislative Assembly in Article 370(3) and applied the Constitution to J&K in entirety.
The petitioners argued under Article 370(3), the Presidential orders required the Constituent Assembly’s concurrence and since there was no such body in J&K, Article 370 was not a temporary but a permanent provision.
They also questioned the bifurcation of the erstwhile state and contended that the division could not have happened without the concurrence of the Constituent Assembly.
They challenged the dissolution of the legislative assembly that was done through a 29 June, 2018 proclamation issued by the Governor, which was followed by the Presidential Rule and then dilution of special status of the erstwhile state.
While refusing to determine whether the J&K Reorganisation Act, 2019 is valid or not, the court observed that a state legislature’s views under Article 3 — which talks about formation of new states and alteration of areas, boundaries or names of existing states — are not binding, but recommendatory in nature.
The petitioners contended that a legislative assembly’s concurrence is needed under Article 3. The court did not dwell upon the constitutional validity of the 2019 Act in view of Centre’s assurance to restore statehood in J&K, thereby leaving the question of law on whether a state can be reduced to a UT open for consideration in future. Simultaneously, it even set a deadline for the Election Commission of India to hold elections in the UT of J&K, irrespective of whether its statehood restored or not. It said “statehood shall be restored” in J&K at the earliest.
However, the bench upheld the creation of Ladakh as a Union Territory, while rejecting the petitioners’ contention that Parliament could not have carved out a UT under the President’s rule.
It held that as the power was transferred to Parliament, following the President’s rule and introduction of the J&K Reorganisation Bill, the proviso that required J&K assembly’s views under Article 3 ceased to exist.
In the 476-page judgment, the top court studied the historical background in which Article 370 was included in the Constitution.
With regard to the assembly’s dissolution, the bench said the petitioners had raised a belated challenge. It further ruled out adjudicating on the Presidential rule’s validity because the pleadings indicated that “principal challenge is to the abrogation and whether such an action could have been taken during the President’s rule”.
Also Read: ‘Culmination of integration’ — SC upholds abrogation of Article 370 that gave J&K special status
Scope of Parliament under Prez rule
On specific actions taken following the President’s rule, the verdict went in the Centre’s favour. In holding so, the top court rejected the petitioners’ contention that the Centre cannot initiate actions having irreversible consequences when a Presidential rule is in force, as seen in the Centre dissolving the assembly.
The petitioners contended that Parliament has a limited role in such a scenario — it can only assume law-making powers of a state legislature.
But the bench said that Parliament’s power during the President’s rule is not restricted to just law-making. There was no impediment or absence of competence to exercise the power in special circumstances, it added.
Acknowledging that the President’s exercise of power must be “desirable or necessary” to give effect to the objects of the Proclamation, the bench said that the actions taken in the present case are valid and not “malafide.”
It accepted that decisions during the Presidential rule are subject to judicial review, whereas innumerable decisions taken for the purpose of day-to-day administration are not. Opening up a challenge to every decision would lead to “chaos and uncertainty,” putting the administration at a “standstill”, it said.
‘Sovereignty surrendered’
The court dismissed the argument that J&K retained an element of sovereignty, saying J&K “surrendered” its sovereignty “full and final” when a proclamation was issued for the state on 25 November, 1949.
Issued by Karan Singh, the declaration said the Constitution would not only supersede all other constitutional provisions in the State which were inconsistent with it, but also abrogate them.
“There is a clear absence in the Constitution of J&K of a reference to sovereignty. In contrast, the Constitution of India emphasises in its Preamble that the people of India resolved to constitute India into a sovereign, socialistic, secular, democratic, republic,” the bench said.
Article 370 not permanent
Article 370 was a temporary provision, introduced to serve two purposes – to provide for an interim arrangement until the Constituent Assembly of the State was formed and could take a decision on the Union’s legislative competence on matters other than the ones stipulated in the Instrument of Accession, and ratify the Constitution; and to have an interim arrangement in view of the special circumstances because of the war conditions in the State, it said.
The Article, it noted, was mentioned in that part of the Constitution dealing with temporary and transitional provision.
The bench further disapproved of the petitioners’ fundamental argument that upon the dissolution of the Constituent Assembly, the Article became a permanent feature of the Constitution.
It said that the Constituent Assembly’s dissolution had no bearing on the President’s power to abrogate Article 370. First, it said, the Constituent Assembly’s recommendation to begin with was not binding on the President, as was argued by the petitioners.
The bench explained proviso 3 of Article 370 to hold that the provision “encapsulates the process by which the Indian States would ratify the Constitution of India” under which every ruler had to issue a Proclamation, ratifying the Constitution on the recommendation of the Constituent Assembly, where such body existed.
Where there was no Constituent Assembly, the ruler had to issue a proclamation to accept the Constitution. The need for the Constituent Assembly’s recommendation, on which the petitioners had based their argument, was required when the Constituent Assembly was convened in such states.
And, this recommendation, the court clarified, was in case the Constituent Assembly desired a modification of the Constitution as it applied to the State. Therefore, the Constituent Assembly (of J&K), it held, was a temporary body and “not intended to be a permanent one.”
So, when the assembly ceased to exist, this part of proviso 3 (requiring recommendation of the Constituent Assembly) ceased to operate. But the President’s power in the substantive portion of Article 370 did not cease, it declared.
Prez has power to apply Constitution to J&K
The bench also upheld the President’s power to apply the Constitution to J&K through the proclamation order that was issued under Article 370(1)(d). Both Articles 370(1)(d) and Article 370(3) were introduced for enhancing constitutional integration and not disintegration, the bench underlined.
“To hold that the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would lead to the freezing of the process of integration contrary to the purpose of introducing the provision.”
The top court, however, faulted the process by which Parliament sought to interpret Article 367 to substitute the words “Constituent Assembly” with “State Legislative Assembly” in Article 370(3).
The bench added that Parliament should have taken recourse to a procedure that was contemplated in Article 370 — relates to interpretation of the Constitution — to amend it.
Amendment in Article 367 changed the language of Article 370(3), creating a new arrangement under the said provision. The interpretation clause under Article 376, the bench said, can be used to define or give meaning to particular terms and not amend any other Article.
Under Article 370(3), the Union executive cannot amend Article 370 without the concurrence of the J&K Constituent Assembly.
(Edited by Tony Rai)