Article 370 was temporary; J&K does not have internal sovereignty: 14 observations of SC Constitution Bench
The Constitution bench of the Supreme Court upheld the Centre's decision to abrogate Article 370 and bifurcate the erstwhile state of Jammu and Kashmir into two Union territories. The five-judge bench was led by Chief Justice of India DY Chandrachud and included Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant
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FollowThe Supreme Court's Constitution bench on Monday upheld the central government's decision to revoke Article 370 and divide the former state of Jammu and Kashmir into two Union territories. The announcement, made on August 5, 2019, involved the withdrawal of the special status granted to Jammu and Kashmir under Article 370, resulting in the creation of two separate union territories. The five-judge constitution bench, led by Chief Justice of India DY Chandrachud and including Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant, delivered the judgment.
Here is what the judges observed:
CJI: The President of India had the power to issue the notification declaring that Article 370 ceases to operate without a recommendation of the J&K Constituent Assembly. It is the culmination of the integration process.
CJI: We direct that steps shall be taken by the Election Commission of India to conduct elections to the J&K assembly by September 30. Restoration of statehood shall take place as soon as possible.
CJI: There are limitations on the power of the Union in states when the proclamation of the presidential rule is in force. We hold that limitations are there when a proclamation is made under Article 356. Article 356(1) states that power in clauses ab,b, and c are not automatically invoked. 356(1) does not have an all-or-none formula. The Centre can exercise some and the state can function in some areas.
CJI: Exercise of power under Article 356 must have a reasonable nexus with the objective of the proclamation.
CJI: Every decision taken by the Union on behalf of the State during Presidential rule is not open to challenge. This will lead to the administration of the state to come to a standstill. The argument of petitioners that the Union cannot take actions with irreversible consequences in the State during Presidential rule is not accepted.
CJI: The petitioner's argument that only the Parliament can make the law-making powers of the State when the Presidential rule is in force is not accepted.
CJI: Whether Jammu and Kashmir retained an element of sovereignty or internal sovereignty when it joined the Union of India. We have held no. The Proclamation of Maharaja stated that the Constitution of India will supersede. With this, the para of Instrument of Accession ceases to exist. The constitutional set-up did not indicate that Jammu and Kashmir retained sovereignty.
CJI: Articles 1 and 370 of the Constitution of India make it evident that the State of Jammu and Kashmir became an integral part of India. All States in the country have legislative and executive power, albeit to differing degrees. Articles 371 A to 371J are examples of special arrangements for different states. This is an example of asymmetric federalism.
CJI: Article 370 was a temporary provision. Article 370 was an interim arrangement due to war conditions in the State. The power of the President under Article 370(3) to issue a notification that Article 370 ceases to exist subsists even after the dissolution of the J&K Constituent Assembly.
CJI: The recommendation of the constituent assembly was not binding on the president. Constituent assembly was never intended to be the permanent body and it was to operate in a period of transition. When the constituent assembly ceased to exist, the special condition for which 370 was introduced ceased to exist but the situation in the state remained and thus the article remained.
CJI: When the constituent assembly ceased to exist, the special condition for which 370 was introduced ceased to exist but the situation in the state remained and thus the article continued.
CJI: Holding that the power under Article 370(3) ceases to exist after the dissolution of the J&K Constituent Assembly will lead to the freezing of the process of integration. The court cannot sit in appeal over the decision of the President of India on whether the special circumstances under Article 370 exist.
CJI: All provision of the Constitution can be applied to Jammu and Kashmir to 370(1)(D). Non-application of mind cannot be claimed.
CJI: Consultation would be needed only when amendments are needed in the state constitution to ensure that the Constitution of the state is not inconsistent with that of Jammu and Kashmir. The principle of consultation and collaboration was not needed here. Malafide can only be there when there is an intention to deceive. We hold the exercise of Presidential power to be valid.
The Supreme Court concluded a 16-day hearing and reserved judgment on the challenge to the repeal of Article 370 on September 5. Opposing the abrogation of Article 370, certain petitioners argued that the provision could not have been revoked since the Jammu and Kashmir Constituent Assembly's term concluded in 1957 after drafting the state's Constitution. They asserted that with the constituent Assembly's dissolution, Article 370 attained a permanent status. Senior advocate Kapil Sibal, who initiated the arguments, contended that Article 370, having lost its "temporary provision" status, became permanent following the Constituent Assembly's dissolution.
Sibal emphasized clause 3 of Article 370, stating that a recommendation from the Constituent Assembly was imperative for its removal. He argued that given the dissolution of the Constituent Assembly, necessary for abrogating Article 370, the provision could not be annulled. Sibal further contended that Parliament couldn't declare itself the legislature of Jammu and Kashmir to facilitate Article 370's abrogation, citing Article 354 of the Constitution as lacking authorization for such power.
Additionally, Sibal linked the imposition of President's rule under Article 356 in Jammu and Kashmir in 2018, asserting that the Constituent Assembly's purpose is to draft a constitution for the future, involving a political exercise to consider the people's aspirations.
The central government defended its decision to repeal Article 370, rejecting claims of "constitutional fraud" and asserting the legality of revoking the provision granting special status to the former state of Jammu and Kashmir.
