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The Supreme Court Monday held the 2019 move by the Union government to abrogate Article 370, which gave special status to the erstwhile state of Jammu and Kashmir, as constitutionally valid.
A five-judge Constitution bench, presided by Chief Justice of India D Y Chandrachud and comprising Justices S K Kaul, Sanjiv Khanna, B R Gavai and Surya Kant, also directed the Centre for the restoration of statehood and for Legislative Assembly elections to be held.
The bench pronounced three judgments – one by the CJI for himself and Justices Gavai and Surya Kant, a concurring judgment by Justice Kaul and a third by Justice Khanna concurring with the other two rulings.
Read the conclusions of the judgement by CJI Chandrachud for himself and Justices Gavai and Surya Kant.
Article 370 was a feature of asymmetric federalism and not sovereignty
The State of Jammu and Kashmir does not retain any element of sovereignty after the execution of the Instrument of Accession (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.
Challenge to Proclamations does not merit adjudication
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.
Exercise of power by President subject to judicial review
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;
Parliament’s power under Article 356(1)(b) cannot be restricted to law-making
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.
Article 370 was a temporary provision
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.
Power under Article 370(3) did not cease to exist upon dissolution of Constituent Assembly
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).
Article 370 cannot be amended by exercise of power under Article 370(1)(d)
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.
President did not have to secure concurrence of Union or state governments
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.
Applying all provisions of Constitution to Jammu and Kashmir valid
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.
President had power to declare that Article 370(3) ceases to operate without recommendation of Constituent Assembly
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.
Constitution of India is a complete code for constitutional governance
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.
Parliament’s exercise of power under first proviso to Article 3 under Proclamation valid
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.
Decision to carve out Union Territory of Ladakh valid
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.
Conduct elections by September 30, 2024
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.
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