Supreme court upheld the abrogation of Article 370

In re Article 370 Of The Constitution (Supreme Court of India)

Introduction: In a historic judgment, the Supreme Court of India, led by Chief Justice Dr. Justice D.Y. Chandrachud, upheld the abrogation of Article 370 of the Constitution. The verdict, accompanied by detailed opinions from Justice Sanjay Kishan Kaul and Justice Sanjiv Khanna, provides a comprehensive analysis of the constitutional intricacies surrounding the revocation of the special status accorded to the erstwhile state of Jammu and Kashmir.

Background and Key Findings

1. Sovereignty and Asymmetric Federalism: The Chief Justice, in his opinion, clarified that the State of Jammu and Kashmir did not retain any element of sovereignty post the Instrument of Accession (IoA) and the Proclamation dated 25 November 1949. Article 370, viewed as a feature of asymmetric federalism, did not confer internal sovereignty distinct from other states.

2. Temporary Nature of Article 370: The court emphasized that Article 370 was a temporary provision and could be abrogated through the mechanism outlined in Article 370(3). The historical context, placement in the Constitution, and subsequent practices highlighted its transitional nature.

3. Validity of Presidential Power: The judgments underscored that the President, under Article 370(3), had the power to issue a notification declaring the cessation of Article 370 without the need for the Constituent Assembly’s recommendation. The court rejected the argument that the President needed the State Government’s concurrence for such an exercise of power.

4. Constitutional Integration and Amendments: The court declared that Article 370 could not be amended by the power under Article 370(1)(d) and found Paragraph 2 of CO 272, which amended Article 367, ultra vires Article 370(1)(d). However, the application of the entire Constitution to Jammu and Kashmir by CO 273 was deemed valid.

5. Reorganization and Union Territories: The judgments validated the creation of the Union Territory of Ladakh under Article 3(a) read with Explanation I. While the restoration of statehood for Jammu and Kashmir was assured, the court upheld the decision to carve out Ladakh as a Union Territory.

6. Electoral Process and Restoration of Statehood: The court directed the Election Commission to conduct elections for the Legislative Assembly of Jammu and Kashmir by September 2024, emphasizing the eventual restoration of statehood.

Individual Perspectives of Justices

a. Chief Justice Dr. Justice D.Y. Chandrachud: The Chief Justice’s opinion extensively delved into the legal complexities, emphasizing the non-sovereign nature of Jammu and Kashmir, the temporary character of Article 370, and the validity of the presidential powers exercised.

b. Justice Sanjay Kishan Kaul: Justice Kaul’s pragmatic analysis highlighted the internal sovereignty recognized by Article 370, the temporary nature of the provision, and the unaffected power of the President under Article 370(3) after the Constituent Assembly’s dissolution.

c. Justice Sanjiv Khanna: Justice Khanna concurred with both opinions, acknowledging the scholarly approach of Chief Justice Chandrachud and the pragmatic demystification by Justice Kaul. He stressed the need for strong grounds for converting a state into a Union Territory.

Conclusion: The Supreme Court’s verdict on the abrogation of Article 370 provides a nuanced understanding of the constitutional aspects involved. The judgments clarify the temporary nature of Article 370, validate the presidential powers, and uphold the reorganization of Jammu and Kashmir while assuring the eventual restoration of statehood. The decision marks a significant milestone in India’s constitutional history, emphasizing the principles of federalism and constitutional governance.

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Extract of Judgment 

Dr. Justice D.Y. Chandrachud, the Chief Justice

514. In view of the above discussion, the following are the conclusions:

a. The State of Jammu and 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 and Kashmir does not have ‘internal sovereignty’ which is distinguishable from the powers and privileges enjoyed by other States in the country. Article 370 was a feature of asymmetric federalism and not sovereignty;

b. The petitioners did not challenge the issuance of the Proclamations under Section 92 of the Jammu and Kashmir Constitution and Article 356 of the Indian Constitution until the special status of Jammu and Kashmir was abrogated. The challenge to the Proclamations does not merit adjudication because the principal challenge is to the actions which were taken after the Proclamation was issued;

c. The exercise of power by the President after the Proclamation under Article 356 is issued 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. Once a prima facie case is made, the onus shifts to the Union to justify the exercise of such power;

d. The power of Parliament under Article 356(1)(b) to exercise the powers of the Legislature of the State cannot be restricted to law-making power thereby excluding non-law making power of the Legislature of the State. Such an interpretation would amount to reading in a limitation into the provision contrary to the text of the Article;

e. It can be garnered from the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution that it is a temporary provision;

f. 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);

g. Article 370 cannot be amended by exercise of power under Article 370(1)(d). Recourse must have been taken to the procedure contemplated by Article 370(3) if Article 370 is to cease to operate or is to be amended or modified in its application to the State of Jammu and Kashmir. Paragraph 2 of CO 272 by which Article 370 was amended through Article 367 is ultra vires Article 370(1)(d) because it modifies Article 370, in effect, without following the procedure prescribed to modify Article 370. An interpretation clause cannot be used to bypass the procedure laid down for amendment;

h. The exercise of power by the President under Article 370(1)(d) to issue CO 272 is not mala fide. The President in exercise of power under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist. The President did not have to secure the concurrence of the Government of the State or Union Government acting on behalf of the State Government under the second proviso to Article 370(1)(d) while applying all the provisions of the Constitution to Jammu and Kashmir because such an exercise of power has the same effect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the State Government was not required;

i. Paragraph 2 of CO 272 issued by the President in exercise of power under Article 370(1)(d) applying all the provisions of the Constitution of India to the State of Jammu and Kashmir is valid. Such an exercise of power is not mala fide merely because all the provisions were applied together without following a piece-meal approach;

j. 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;

k. The Constitution of India is a complete code for constitutional governance. Following the application of the Constitution of India in its entirety to the State of Jammu and Kashmir by CO 273, the Constitution of the State of Jammu and Kashmir is inoperative and is declared to have become redundant;

l. The views of the Legislature of the State under the first proviso to Article 3 are recommendatory. Thus, Parliament’s exercise of power under the first proviso to Article 3 under the Proclamation was valid and not mala fide;

m. The Solicitor General stated that the statehood of Jammu and Kashmir will be restored (except for the carving out of the Union Territory of Ladakh). In view of the statement 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. However, we uphold the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State; and

n. 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. Restoration of statehood shall take place at the earliest and as soon as possible.

515. The writ petition and special leave petitions are disposed of in the above terms.

Justice Sanjay Kishan Kaul

111. On the basis of the analysis, I record the conclusions as follows:

a. In light of this Court’s prior finding in Prem Nath Kaul, the State of Jammu and 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;

b. A combination of factors, such as Article 370’s historical context, its text, and its subsequent practice, indicate that Article 370 was intended to be a temporary provision;

c. Article 370(3) contained the mechanism to bring the temporary arrangement to an end, and in turn, to de-recognize the internal sovereignty of the State and apply the Constitution of India in toto;

d. Since Article 370 is meant to be a temporary arrangement, it cannot be said that the mechanism under Article 370(3) came to an end after the State Constituent Assembly was dissolved;

e. The power of the President under Article 370(3) was unaffected by the dissolution of the Constituent Assembly of Jammu and Kashmir. The President could exercise their power anytime after the dissolution of the Constituent Assembly of Jammu and Kashmir, in line with the aim of full integration of the State. Hence, C.O. 273, which declares that Article 370 shall cease to operate except as provided, and was issued under Article 370(3), is valid;

f. The power to issue C.O. 272 without the concurrence of the Government of the State is valid, as the power of the President is not limited by the concurrence of the Government of the State in this case;

g. The power under Article 370(1)(d) read with Article 367 cannot be used to do indirectly, what cannot be done directly. The power to make modifications under Article 370(1)(d) cannot be used to amend Article 370 and Article 367, which is an interpretation clause, cannot be used to

alter the character of a provision. Therefore, Paragraph 2 of C.O. 272, which amends Article 367(4) is ultra vires Article 370;

h. However, the President had the power to apply all provisions of the Constitution of India to Jammu and Kashmir under Article 370(1)(d), which is similar to the power under Article 370(3). Therefore, the remainder of Paragraph 2 of C.O. 272 is valid;

i. President’s rule can be imposed after the dissolution of the State Assembly since the Presidential emergency was predicated on the failure of the constitutional machinery, which took place prior to the Governor’s rule and the dissolution of the Assembly by the Governor of Jammu & Kashmir was only a subsequent consequence;

j. Once the Presidential proclamation has been approved by both Houses of Parliament, so as to reflect the will of the people, the President has the power under Article 356 to make irreversible changes, including the dissolution of the State Assembly;

k. The imposition of an emergency highlights an extraordinary situation and in the absence of the State Government and State Legislature, the power of these elected organs must lie with any other competent authority. Article 357 does not bar the President from exercising the non-legislative powers of the State Legislature, and Article 356(1)(b) allows the Union Parliament to exercise all powers of the State Legislature without distinguishing between legislative and non-legislative powers of the State Legislature. Therefore, the President is permitted to exercise both legislative and non-legislative functions of the State Legislature. However, a proclamation of emergency is bound by judicial and constitutional scrutiny to ensure the exercise of emergency powers is not unfettered and absolute.

l. The challenge to Section 4 of the Jammu and Kashmir Reorganization Act on the touchstone of Article 3 is not required to be debated on account of the assurance on behalf of the Government of India that the Statehood of Jammu & Kashmir would be restored on elections being held;

m. It is imperative to ascertain the ‘views’ of the State Legislature under the first proviso to Article 3 if the proposed Bill affects the area, boundaries or name of the State. However, in the instant case since the State of Jammu & Kashmir was under President’s Rule and the State Legislature was already dissolved, the functions of the State Legislature were performed by the Union Parliament. Hence, it was not possible to ascertain the views of the State Legislature. It follows that Section 3 of the Reorganization Act is valid.

Justice Sanjiv Khanna

A judgment is a decision which gives reasons to arrive at and reach the conclusion. We have two judgments.

2. The judgment of Hon’ble Dr. Justice D.Y. Chandrachud, the Chief Justice, is scholarly and it elaborately annotates the complex legal issues. The judgment authored by Hon’ble Mr. Justice Sanjay Kishan Kaul pragmatically demystifies the factual and legal position. Both judgments are in seriatim and uniformly agree that Article 370 of the Constitution of India was a feature of asymmetric federalism and not sovereignty. Article 370 was enacted as a transitional provision and did not have permanent character. The abrogation of Article 370 does not negate the federal structure, as the citizens living in Jammu and Kashmir do and will enjoy same status and rights as given to citizens residing in other parts of the Country (See Paragraph 5). Paragraph (2) of C.O. 272 by which Article 370 was amended by taking recourse to Article 367 is ultra vires and bad in law, albeit can be sustained in view of the corresponding power under Article 370(1)(d). Most importantly, Article 370 has been made inoperative in terms of clause (3) to Article 370. Lastly, C.O. 273 is valid.

3. I find it difficult to state that I agree with the reasoning in one and not the other. I, therefore, respectfully concur with the two judgments. However, I would add with particularisation.

4. Justice D.Y. Chandrachud has elaborately examined and interpreted the power of the President of India under Article 356 of the Constitution of India and disseminated the opinions of Mr. Justice B.P. Jeevan Reddy and Mr. Justice P.B. Sawant in S.R. Bommai and Others v. Union of India and Others ( (1994) 3 SCC 1).² Reference can also be made to Rameshwar Prasad and Others (VI) v. Union of India and Another ((2006) 2 SCC 1. I respectfully agree.

5. I also agree with the observations recorded by Dr. Justice D.Y. Chandrachud taking record of the statement on behalf of the Union of India for restoration of the statehood of the Union Territory of Jammu and Kashmir, while upholding the creation of the Union Territory of Ladakh (Mr. Justice Sanjay Kishan Kaul has noted alike.).

6. Union Territories are normally geographically small territories, or may be created for aberrant reasons or causes. Conversion of a State into Union Territory has grave consequences, amongst others, it denies the citizens of the State an elected state government and impinges on federalism. Conversion/creation of a Union Territory from a State has to be justified by giving very strong and cogent grounds. It must be in strict compliance with Article 3 of the Constitution of India.

4. Justice Sanjay Kishan Kaul has explained the effect of Article 370(3) and why it continued to operate after dissolution of the Constituent Assembly of the State. I respectfully agree with the detailed reasoning given by Mr. Justice Sanjay Kishan Kaul on this aspect.