Explained: Key aspects of Supreme Court’s Article 370 verdict

This is what the court said on four key issues in the challenge to the decisions of the government.

On the sovereignty of Jammu and Kashmir

The petitioners had argued that J&K retained an element of sovereignty when it joined the Indian Union in 1947. This arrangement, they argued, was distinct from the relationship with the other princely states that merged with India.

The court examined the constitutional set-up of the erstwhile state to examine if it retained an element of sovereignty, which would allow Article 370 to operate in “unique circumstances”.

First, it noted, Article 1 of the Constitution of India provides that India is a Union of States. Article 1 references “Part III states”, and Jammu and Kashmir was listed as a Part III state (before 2019) in the First Schedule to the Constitution of India.

Second, Section 3 of the Constitution of Jammu and Kashmir declared that Jammu and Kashmir is an integral part of India. The provision read: “Relationship of the State with the Union of India: The State of Jammu and Kashmir is and shall be an integral part of the Union of India.” Section 147 of the J&K Constitution prohibited any amendment to Section 3.

This is not a case where only Articles 1 and 370…were applied to Jammu and Kashmir and suddenly after seventy years the entire Constitution was being made applicable. 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 in exercise of the power under Article 370(3) is a culmination of the process of integration.

Story continues below this ad

The court held that these provisions contradict the argument that an agreement of merger was necessary for Jammu and Kashmir to surrender its sovereignty. It noted that when Yuvraj Karan Singh issued the Proclamation adopting the Indian Constitution on November 25, 1949, it effectively had the effect of a “merger” like any other princely state.

“The declaration that the Constitution of India would not only supersede all other constitutional provisions in the State which were inconsistent with it but also abrogate them achieves what would have been attained by an agreement of merger,” the CJI said in his opinion, written also for Justices B R Gavai and Surya Kant.

However, Justice S K Kaul in his concurring opinion held that J&K retained an element of internal sovereignty despite Maharaja Hari Singh signing the Instrument of Accession (IoA) with India. He cited the recognition of this internal sovereignty in Article 370 when it recognised the Constituent Assembly of the State. However, this had no bearing on the final conclusions reached by Justice Kaul.

On whether Art 370 is temporary or permanent

A range of arguments were made before the Court on the permanence (or lack thereof) of Article 370. The petitioners argued that the provision could not be abrogated since it had attained permanence, and as the original part of the Constitution forms the basic structure, which cannot be tinkered with.

Senior advocate Kapil Sibal argued that since 370(3) prescribes the recommendation of the Constituent Assembly of the State (which has ceased to exist) as a prerequisite to abrogate Article 370, its abrogation is essentially infructuous. This means no constitutional means existed to abrogate Article 370 once the J&K Constituent Assembly had ceased to exist.

The opinions of both the CJI and Justice Kaul held that Article 370 was always meant to be a “temporary” feature.

Justice Kaul held that 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.

The CJI said that there were two aspects that showed the temporary nature of Article 370. First, it was intended as an interim arrangement until the Constituent Assembly of the State was formed since in the interim, there was needed a legal bridge between J&K and India. Once the J & K Constitution was enacted and it was adopted to be a part of India, this arrangement would not have been necessary.

Second, the provision was adopted because of the special circumstances in the state, which was experiencing war conditions.

On the legality of the abrogation of Article 370

The legal route for the abrogation of Article 370 was twofold. First, on August 5, 2019, then President Ram Nath Kovind issued CO 272, which amended Article 367 of the Constitution. Article 367 deals with interpretation of the Constitution, and the CO added a new meaning to “Constituent Assembly of Jammu and Kashmir” to mean “legislative assembly of Jammu and Kashmir.

Then, CO 273 was promulgated seeking the consent of Parliament (which had assumed powers of the J&K legislature) to recommend that “all clauses of the said article 370 shall cease to be operative”.

While Justice Kaul upheld this process, CJI Chandrachud in his opinion said that the circuitous route of first changing the meaning of the Constituent Assembly of J&K was not needed. Essentially, after the Constituent Assembly of the state ceased to exist, the President could have always unilaterally abrogated Article 370.

“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 ruling stated.

On the action that was taken under President’s rule

The petitioners had argued that the Union took “irrevocable” action without the state’s consent when it was under President’s rule. Here, the challenge was to the extent of powers that can be appropriated when Article 356 is in operation.

Both the CJI and Justice Kaul cited the 1994 ruling in S R Bommai v Union of India that defined the contours of proclamation of President’s rule. The Bommai ruling was a nine-judge Bench verdict that is binding on a smaller 5-judge Bench.

Relying on the Bommai ruling, the court said that the standard to decide the validity of the President’s action was to see whether it was not “mala fide or palpably irrational”, or that the “advisability and necessity of the action was not borne in mind by the President”.

The court also held that the petitioner and the Union government must show mala fides to the court. The ruling rejected the argument that irrevocable action being taken cannot be accepted as proof of mala fides.