‘Constitutionally valid’: Supreme Court upholds order abrogating Article 370, asks EC to hold elections by Sept next year

Justice Kaul, in his ruling, recommended the “setting up of an impartial truth and reconciliation commission” to “investigate and report on the violation of human rights both by State and non-State actors perpetrated in Jammu & Kashmir at least since the 1980s and recommend measures for reconciliation”.

From left: Justice B R Gavai, Justice Sanjay Kishan Kaul, Chief Justice of India D Y Chandrachud, Justice Sanjiv Khanna and Justice Surya Kant in the Supreme Court on Monday. (PTI)

The Bench upheld the Constitutional validity of two Presidential Orders – The Constitution (Application To Jammu and Kashmir) Order (CO) 272 and 273 dated August 5 and 6, 2019 – by which the entire Constitution of India was made applicable to J&K, declaring all provisions of Article 370 inoperative.

The CJI, writing for himself and Justices Gavai and Surya Kant, held that the princely state of J&K “did not retain an element of sovereignty when” it joined the Union of India.

On the reorganisation of the State into the Union Territories of J&K and Ladakh in 2019, the Bench rejected the argument that the Bill for this under Article 3 could have been introduced only with the consent of the State Legislature, saying it had, in a previous case, held that such recommendation of the State Legislature is only recommendatory and not binding on Parliament.

“If the views of the State Legislature were binding on Parliament (which is not the case), there would be scope for debate on whether Parliament in exercise of powers under Article 356 (1) (b) could have substituted its views for the views of the Legislative Assembly of the State,” it said, declining to determine whether the reorganisation was permissible under Article 3 in view of the assurance by the Centre that statehood will be restored to J&K and that its status as a UT is temporary. The government also told the court that Ladakh’s UT status will not be affected by the restoration of statehood to J&K.

The CJI’s ruling said it is “alive to the security concerns in the territory” and “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”.

Waving a booklet on Article 370 outside the Supreme Court on Monday. (Express photo by Praveen Khanna)

The CJI’s ruling directed 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”. It said “restoration of statehood shall take place at the earliest and as soon as possible”.

The ruling rejected the contention of the petitioners that there was no merger agreement between J&K and Union of India (UoI) but only an Instrument of Accession (IoA) and as such, there was no complete surrender of sovereignty by the princely state to India. It held that “the State of J&K did not retain an element of sovereignty when it joined the UoI”.

Explaining the reasons, it said that though paragraph 8 of the Instrument of Accession executed by Maharaja Hari Singh provided that nothing in the Instrument would affect the continuance of the sovereignty of the Maharaja in and over the State, Yuvraj Karan Singh on November 25, 1949, issued a Proclamation which declared 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”.

This, the ruling said, “achieves what would have been attained by an agreement of merger. With the issuance of the Proclamation, paragraph 8 of the Instrument of Accession ceased to be of legal consequence. The Proclamation reflects the full and final surrender of sovereignty by J&K, through its sovereign ruler, to India – to her people who are sovereign”.

It said that “neither the constitutional setup nor any other factors indicate that the State of J&K retained an element of sovereignty. The Constitution of J&K was only to further define the relationship between the UoI and the State of J&K” and that ‘there is a clear absence in the Constitution of J&K of a reference to sovereignty in contrast” to the Constitution of India which “emphasises” this in its Preamble.

Justice Kaul, however, said that the State of J&K “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”.

The Bench also rejected the contention that Article 370 was temporary only from 1951 to 1957 when the Constituent Assembly for J&K existed and became permanent thereafter.

The CJI’s judgement said the provision was temporary, both in the historical context in which it was included and on the textual reading of it.

Article 370, the CJI’s ruling said, “was introduced to serve two purposes. First, the transitional purpose: to provide for an interim arrangement until the Constituent Assembly of the State was formed and could take a decision on the legislative competence of the Union on matters other than the ones stipulated in the Instrument of Accession, and ratify the Constitution; and second, a temporary purpose: an interim arrangement in view of the special circumstances because of the war conditions in the State”.

On the textual reading, the ruling relied on the “placement of the provision in Part XXI of the Constitution which deals with temporary and transitional provisions, the marginal note of the provision which states ‘temporary provisions with respect to the State of J&K’, and a reading of Articles 370 and 1 by which the State became an integral part of India upon the adoption of the Constitution”.

Agreeing, Justice Kaul said, “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”.

The CJI said “the State of J&K does not have ‘internal sovereignty’ which is distinguishable from the powers and privileges enjoyed by other States in the country” and “Article 370 was a feature of asymmetric federalism and not sovereignty”.

The CJI’s ruling, however, faulted the procedure adopted by Parliament to modify Article 370 by amending Article 367 using Article 370 (1) (d) “because it modifies Article 370, in effect, without following the procedure prescribed to modify Article 370… Recourse must have been taken to the procedure contemplated by Article 370 (3)”.

Justice Kaul said that if the Article 367 route is allowed to be used to amend provisions of the Constitution “the effect would be disastrous”.

The CJI ruling said that “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… while applying all the provisions of the Constitution to J&K 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”.

Justice Kaul added: “Article 370 vests the President with constituent power, i.e. power to apply or re-fashion different provisions of the Constitution of India, as applicable to Jammu & Kashmir. Thus, it is not amenable to ordinary forms of judicial review, such as the grounds of mala fides, etc.”

The CJI’s ruling said that 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).”

While ruling that 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 court referred to Constitutional Orders issued from time to time with regard to J&K and said this “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”.

It also said that “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”.

Agreeing with the two rulings, Justice Khanna said they “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 the same status and rights as given to citizens residing in other parts of the country”.

Concurring with the CJI’s views on reorganisation of the State, Justice Khanna said “conversion of a State into UT has grave consequences, amongst others, it denies the citizens of the State an elected state government and impinges on federalism. Conversion/creation of a UT 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”.

Justice Kaul called for the “setting up of an impartial truth and reconciliation commission” to “investigate and report on the violation of human rights both by State and non-State actors perpetrated in Jammu & Kashmir at least since the 1980s and recommend measures for reconciliation”.

“This Commission should be set up expediently, before memory escapes. The exercise should be time-bound. There is already an entire generation of youth that has grown up with feelings of distrust and it is to them that we owe the greatest duty of reparation. At the same time, considering the significance of the matter and the sensitivities involved, it is my view that it is for the Government to devise the manner in which this should be set up, and to determine the best way forward for the commission,” he said.