Article 370 abrogation upheld: How SC answered three key questions in the government’s favour

One, on the ‘unique’ and ‘special status’ of Jammu and Kashmir.

The SC held that J&K did not retain any element of sovereignty after its accession to India in 1947.

The court said that although Maharaja Hari Singh, the erstwhile 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 in essence, had the effect of a merger like every other princely state that joined India, the court ruled.

The court emphatically concluded that Jammu and Kashmir has always been an integral part of India. CJI Chandrachud cited Section 3 of the J&K Constitution itself, 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.” The state’s Constitution also provided that this provision cannot be amended.

Justice Kaul said that being the only state with its own Constitution also does not define a special status. “The purpose of J&K Constitution was to ensure everyday governance in the state and the purpose of Article 370 was to integrate the state with India,” he said.

Two, is Article 370 a ‘temporary’ or a permanent provision of the Constitution?

The Supreme Court held that Article 370 is a temporary, transitional provision.

CJI Chandrachud took a textual approach and cited evidence of the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution dealing with temporary provisions.

He also said that the “temporary” provision served a purpose in the war-like situation prevailing in the state in 1947.

Three, the questions relating to the effective abrogation of Article 370.

The Supreme Court upheld both the presidential proclamations of August 2019.

Apart from the larger federal issues and the debate around the special status of J&K, the key legal challenge was to the two Presidential proclamations in 2019 which in effect abrogated Article 370.

The Court upheld both the proclamations, including the one that gave a new meaning to “constituent assembly of Jammu and Kashmir”, as “Legislative Assembly of Jammu and Kashmir.”

The central issue was whether these actions could be taken by the Union assuming powers of the state when it is under President’s rule. Here, the Supreme Court referred to the landmark 1994 ruling in ‘SR Bommai v Union of India’ which dealt with the powers and limitations of the Governor under President’s rule.

CJI DY Chandrachud said that the Governor (President in J&K’s case) can assume “all or any” roles of the state legislature and such action must be tested judicially only in extraordinary cases.

Relying on an interpretation of the Bommai ruling, the SC said that there is “no prima facie case that the President’s orders were malafide or extraneous exercise of power.”